Sisett v. Central Okanagan (Regional District)

2024 BCSC 730 Sisett v. Central Okanagan (Regional District)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Sisett v. Central Okanagan (Regional District), 2024 BCSC 730 Date: 20240501 Docket: 96357 Registry: Kelowna Between: Ian R. Sisett Appellant And Regional District of Central Okanagan Respondent Before: The Honourable Mr. Justice Veenstra On appeal from: An order of the Provincial Court of British Columbia, dated March 21, 2023 (Regional District of Central Okanagan v. Sisett, Kelowna Docket 96357-1). Reasons for Judgment The Appellant, appearing in person: I. Sisett Counsel for the Respondent: A. Mouret T.J. DeSouza Place and Dates of Hearing: Kelowna, B.C. September 26-27, 2023 Dates of Written Submissions Received: December 11, 20 and 28, 2023 Place and Date of Judgment: Kelowna, B.C. May 1, 2024 Table of Contents Introduction.. 3 The Spike Incident. 4 The Bylaw.. 7 The Nahla Incident. 10 The 2023 Trial. 12 No Evidence Motion. 13 Conviction. 16 The Sentencing Hearing.. 19 Submissions. 19 Reasons for Judgment 22 Positions of the Parties. 26 The Appellant 26 The Respondent 29 Legal Context. 30 Dangerous Dog Provisions under the Community Charter 30 Bylaw Enforcement by a Regional District 32 Offence Act Provisions Governing Sentencing. 34 Costs Issues. 35 Standard of Review.. 46 Analysis. 48 Fines for Counts 2, 4, 6 and 7. 49 Payment to Mr. Dorosh. 51 Prohibition Orders. 53 Charter Application - Wrongful Seizure. 54 Costs

Issues. 56 Conclusion.. 61 Introduction [1] Ian Sisett appeals from a sentence imposed on March 21, 2023, by a Judge of the Provincial Court in respect of Mr. Sisett's conviction on four charges under the Regional District of Central Okanagan ("RDCO") Responsible Dog Ownership Bylaw No. 1343, 2014 (the "Bylaw"). [2] Those charges arose from a summons issued on August 27, 2021. The four charges on which Mr. Sisett was convicted relate to his dog, Charlie: a) Count 2 - failed to obtain a "Dangerous Dog" license from the RDCO; b) Count 4 - failed to keep Charlie within a locked enclosure incapable of being accessed by the public or children; c) Count 6 - failed to post a sign visible to the public at the front and back of the property warning that a dangerous dog resides on the property; and d) Count 7 - failed to obtain a microchip and provide the RDCO with identification proof that a microchip has been implanted within 15 days of declaration. [3] The formal order of the Provincial Court judge entered March 30, 2023 (the "Order"), provides as follows:

FINES 1. Mr. Sisett pay fines and costs to the [RDCO] pursuant to section 4 of the Offence Act [RSBC 1996], Chapter 338, and sections 416(2) of the Local Government Act [RSBC 2015], Chapter 1 (the "LGA"). a. Count 2 no dangerous dog license - $500 b. Count 4 no locked pen enclosure - $1,500 c. Count 6 no dangerous dog signage - $1,500 d. Count 7 no microchip - $500 COSTS OF PROSECUTION: - $7,000

TOTAL $11,000

REMEDY HARM 2. Mr. Sisett pay $1,000 to Adam Dorosh, owner of the dog Nahla, to remedy the harm for injuries and veterinary costs pursuant to section 417(1)(d) of the LGA.

PROHIBITION ORDERS 3. Mr. Sisett must comply with the RDCO Responsible Dog Ownership Bylaw No. 1343, 2014 (the "Bylaw") by taking the following action pursuant to section 417(1)(c) of the LGA: a. Retain an annual dangerous dog license for his dog Charlie pursuant to s. 11 of the Bylaw; b. Pass an inspection of the locked enclosure at (the "Property") by RDCO Animal Control Officers within 15 days or alternatively, install and pass an inspection for a new locked enclosure pursuant to s. 39(2) and schedule C of the Bylaw within 45 days; c. Post a "dangerous dog" sign visible to the public at both the front and the back of the Property pursuant to section 40 and schedule F of the Bylaw within 15 days; and d. Install a microchip on Charlie and provide identification proof to RDCO that such microchip has been implanted within 15 days pursuant to section 41 of the Bylaw.

4. Mr. Sisett's application for relief and costs pursuant to the Canadian Charter of Rights and Freedoms, in Part 1 of the Constitution Act 1982, is dismissed. [4] Mr. Sisett argues that the fines are excessive and unduly harsh and punitive, that there was no evidence of any costs incurred by Mr. Dorosh that were caused by any breach of the Bylaw, that the "Prohibition Orders" are not prohibitory but rather mandatory injunctions outside the Provincial Court judge's jurisdiction, and that the order for payment of costs of prosecution is excessive, not supported by any evidence, and fails to take account of Mr. Sisett's substantial success on the charges of which he was acquitted. The Spike Incident [5] Mr. Sisett and his wife live on the outskirts of Kelowna, in an area governed by the RDCO. They are the owners of Charlie, a large standard poodle. Mr. Sisett's evidence is that Charlie is a much-loved family pet. The evidence indicates that the Sisetts have multiple large dogs, and that Charlie gets along well with these other dogs. However, as will be seen from the evidence below, his interactions with small dogs have been problematic. [6] On January 29, 2020, Mr. Sisett had three dogs, including Charlie who at the time was one year old, off-leash on a grass field at Okanagan College, where he was exercising and training the dogs. A Ms. Michaels was walking her small (less than

ten pound) dog Spike on a sidewalk adjacent to the field. 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. The ultimate vet bill for Spike's injuries exceeded $6,000. [7] An animal control officer, Mr. McKenny, investigated the incident and concluded that Charlie was a "dangerous dog" as that term is defined in the Bylaw. On March 18, 2020, both Mr. Sisett and his wife were served with a "Dog Owner Notice" under the Bylaw. It included the following: The Animal Control Officer of the [RDCO] has declared your dog as follows: □ Nuisance Dog □ Aggressive Dog X Dangerous Dog You are required to comply with: X Sections 25, 34 - at large, nuisance dog X Section 37 - dog in prohibited area □ Section 38 - aggressive dog X Sections 39, 40, 41 - dangerous dog X Other, Sections(s) 11 - Licensing [8] The notice recorded that a copy of the Bylaw had been provided to the Sisetts, and included the following warning at the bottom:

DANGEROUS DOG NOTICE You are hereby put on notice that any future attacks by your dog against persons or domestic animals may result in an application for humane euthanization pursuant to Section 49 of the Community Charter, S.B.C. 2003, Chapter 26. [9] On July 24, 2020, Mr. Sisett was issued with a municipal ticket information asserting that Mr. Sisett had on that day, committed an offence under s. 36 of the Bylaw. The offence was described on the ticket as "Dangerous Dog" and the fine amount, if paid within 30 days, was $1,000. [10] Mr. Sisett elected to challenge the ticket, which resulted in a hearing that commenced on February 22, 2021 and continued on June 9 and 10, 2021, before a Judicial Justice of the Provincial Court. On July 12, 2021, the judicial justice issued reasons for judgment: R. v. Sisett (12 July 2021), Kelowna 14908-1 (B.C.P.C.). In the course of those reasons for judgment, the judicial justice considered whether the prosecution had proven beyond a reasonable doubt that Charlie is a dangerous dog. The judicial justice noted that the Bylaw adopted the definition of a dangerous dog in the Community Charter, S.B.C. 2003, c. 26, s. 49, which states: "dangerous dog" means a dog that (a) has killed or seriously injured a person, (b) has killed or seriously injured a domestic animal, while in a public place or while on private property, other than property owned

or occupied by the person responsible for the dog, or (c) an animal control officer has reasonable grounds to believe is likely to kill or seriously injure a person. [11] With respect to this issue, the judicial justice concluded: [37] Officer McKenney is an animal control officer as defined by the Community Charter. Under the Community Charter and the Regional District Bylaw, Mr. McKenney was given the authority to determine if Charlie was a dangerous dog. Officer McKenney did determine that Charlie was a dangerous dog based on the statements he obtained from Ms. Michaels and Ms. Clarkson. [38] The [Bylaw] section 6 provides the definition of a domestic animal, it states: Domestic Animal means any animal or pet kept by a person for domestic, commercial, or farm service including any livestock defined under the Livestock Act. [39] Spike is a domestic animal. [40] I find Officer McKenney's determination that Charlie is a dangerous dog is correct. Charlie, without any provocation, attacked and seriously injured Spike. I find that Charlie is a dangerous dog. [12] The judicial justice then considered whether the prosecution had proved that Mr. Sisett had "caused or permitted Charlie to become a dangerous animal", ultimately concluding: [53] Crown has proven its case beyond a reasonable doubt and I find Mr. Sisett guilty of this offence. [54] Had this matter proceeded by way of a

long form information, Form 2, pursuant to the Community Charter, section 263.1, I would have had the authority to order Mr. Sisett to pay compensation to Ms. Michaels for her expenses related to this attack and I would have done so in the amount of $5,830.72. Because the matter proceeded by way of a Municipal Ticket Information, the Community Charter section 263.1 does not apply and I therefore cannot order that compensation. [55] I hereby order Mr. Sisett to pay the fine amount of the ticket in the amount of $1,000, payable by August 31, 2021. The Bylaw [13] Before continuing with the narrative, I will review the Bylaw, titled "Responsible Dog Ownership", respecting the regulating, licensing and control of dogs. The recitals to the Bylaw note that it is adopted pursuant to both: a) Part 22, Division 1 (Regulation of Animals) of the Local Government Act, R.S.B.C. 2015, c. 1 [LGA], which authorizes the RDCO to pass a bylaw regulating the keeping, control and licensing of dogs; and b) Section 49 of the Community Charter, which provides the RDCO with special powers in relation to dangerous dogs. [14] Sections 10, 11, and 16 of the Bylaw contain a general requirement that each person who owns a dog and resides in the RDCO obtain a license by the end of February each year, and pay the license fee provided in Schedule B. The general license fee in Schedule B is either $40 or $80

each year, depending on whether the dog is spayed/neutered. However, if the dog falls within certain categories, the annual fee is higher: the fee for a dog designated as "aggressive" is $100 or $150, and the fee for a dog designated as "dangerous" is $500. [15] Section 25 provides that no owner, as defined in the Bylaw, may permit their dog to be at large (i.e. not securely leashed and under the control of the owner) in any public place. This provision applies to all dogs--not just those categorized as aggressive or dangerous. [16] Part 9 of the Bylaw deals with dogs that are designated to be a "nuisance dog", an "aggressive dog", or a "dangerous dog". Sections 34-36 provide that: 34. No Owner shall cause or permit his or her dog to become a Nuisance Dog.

35. No Owner shall cause or permit his or her dog to become an Aggressive Dog.

36. No Owner shall cause or permit his or her dog to become a Dangerous Dog. [17] The definitions in Part 2 of the Bylaw help to determine whether a dog falls within any of these categories: a) A dog is a "nuisance dog" if it has been at large or impounded three times within 12 months, or if the owner has been ticketed three times within 12 months, or if the dog "is menacing by repeatedly charging or lunging at a fence". b) A dog is an "aggressive dog" if it has attacked, bitten, or caused injury or attempted to attack, bite, or cause injury to a person or domestic animal "as determined by an Animal Control Officer". c) A dog is a "dangerous dog" if it "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." The definition in s. 49 of the Community Charter is set out above. [18] Where a dog has been declared either dangerous or aggressive, s. 37 of the Bylaw prohibits an owner from allowing the dog into any sports field, playground, public beach, swimming area, park, off-leash park, or school ground at any time. [19] If a dog has been declared aggressive, then any time the dog is outside, it must be either controlled on a leash securely held or within a fenced yard in accordance with Schedule C. With respect to fencing, Schedule C of the Bylaw requires that

a fence be "of adequate height and constructed to contain the dog(s)", with all gates being capable of being locked. [20] If a dog has been declared dangerous, then the following provisions apply: 39. When a Dangerous Dog is outside its Owner's House or Dwelling Unit and not kept within a closed vehicle, the Owner shall: (1) keep the Dangerous Dog controlled on a leash securely held and a muzzle tightly fastened; or (2) keep the Dangerous Dog within a locked Enclosure incapable of being accessed by the public or children and in accordance with Schedule 'C'.

40. An Owner of a Dangerous Dog shall post a sign visible to the public at the front and back of his or her property warning that a Dangerous Dog resides on the property in accordance with Schedule 'F' of this Bylaw.

41. An Owner of a Dangerous Dog shall obtain a microchip and provide the Regional District with identification proof that a microchip has been implanted. A microchip shall be implanted within 15 days of Declaration. [21] Schedule C sets out various requirements for an enclosure including minimum sizes for the enclosure as well as minimum requirements for the materials used, the use of impervious surface materials, and locking. [22] Schedule F provides a photograph of a dangerous dog sign. The sign contains the word "Warning! Dangerous Dog on Premises", a photograph of a fearsome-looking dog with teeth bared, a reference to the Bylaw, and the RDCO logo. [23] Section 68 of the Bylaw provides that: Any person who violates any of the provisions of this Bylaw, or who suffers or permits any act or thing to be done in contravention or in violation of any of the provisions of this Bylaw, or who neglects to do or refrains from doing anything required to be done by way of the provisions of this Bylaw, is guilty of an offence under this Bylaw, and liable to a penalty of not less than Fifty Dollars ($50.00) and not more than Two Thousand Dollars ($2,000.00) for each offence. [24] Page 18 of the Bylaw consists of a table, not otherwise referenced within the Bylaw, containing the following heading: FOR REFERENCE ONLY - TICKETING INFORMATION FOR (effective Oct 13/16) Regional District of Central Okanagan Ticket Utilization Bylaw No. 435 and Regional District of Central Okanagan Bylaw Notice Enforcement Bylaw No. 1326 [25] The balance of page 18 lists various potential violations of the Bylaw, a section number, and a dollar amount. Among the items are the following:

SECTION

FINE No dog license (adopted Dec. 2013) 10 & 11 300.00 Dangerous Dog 36 1,000.00 Dog in prohibited area, dangerous dog 37 1,000.00 Fail to control/enclose dangerous dog 39, 39.1, 39.2 1,000.00 Fail to post signage, or micro-chip - dangerous dog 40 & 41 300.00 The Nahla Incident [26] On July 18, 2021, just six days after the decision of the judicial justice, there was a further incident at the Sisetts' home in Kelowna. A Mr. and Ms. Dorosh had been staying at the property next door, and at approximately 8:00 a.m. were loading items into their truck. Their small Yorkshire Terrier, Nahla, was off-leash and managed to make her way into the Sisetts' fenced yard. Charlie took Nahla into his mouth and shook her. Ms. Dorosh jumped over the fence to rescue Nahla. In the process she suffered some scrapes to her knees and a cut to her hand. In addition, Nahla bit Ms. Dorosh on her face. Nahla suffered some lacerations to her abdomen. [27] Ms. Dorosh complained to the RDCO. On August 11, 2021, a dog control officer of the RDCO swore an information to obtain a search warrant ("ITO"). On August 17, 2021, a judicial justice issued a search warrant authorizing a search of the Sisetts' home for the purposes of seizing Charlie and holding him at the RDCO pound. Although the evidence before me was not clear on this point, I gather that Charlie was seized by the authorities and spent some time at the RDCO's facilities, but was ultimately returned to the Sisetts. [28] On August 27, 2021, proceedings were initiated with respect to the incident with Nahla. Rather than proceed again by way of a municipal ticket information, the RDCO elected to proceed by way of an information in Form 2 under the Offence Act, R.S.B.C. 1996, c.

338. On August 27, 2021, Mr. Sisett was issued a "Summons to a Person Charged with an Offence" in Form B, notifying him that he had been charged with seven counts and commanding him to appear before the Provincial Court to answer to the said charges. [29] In the interim, Mr. Sisett had commenced an appeal from his conviction in respect of the January 2020 incident with Spike. That appeal was ultimately heard by Justice G.P. Weatherill on March 2 and May 4, 2022. On May 19, 2022, Weatherill J. gave reasons for judgment allowing the appeal in R. v. Sisett, 2022 BCSC 841. At para. 39, Weatherill J. identified two questions to be considered in disposing of the appeal: 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? [30] He concluded that the answer to the first question was 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. [31] However, Weatherill J. concluded that the answer to the second question was no: [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. [32] Justice Weatherill allowed the appeal and set aside the conviction. The 2023 Trial [33] The trial arising from the information issued in August 2021 proceeded on January 16-18, 2023, before a Provincial Court judge. No Evidence Motion [34] An initial ruling was given orally on January 18, 2023, regarding a no evidence motion brought by Mr. Sisett (the "No Evidence Motion Reasons"). The decision was transcribed and is indexed at 2023 BCPC 100. As noted by the trial judge: [5] After the close of the prosecution's case Mr. Sisett made a no evidence motion with respect to Counts 1 and 5. They read respectively as follows: Count 1: IAN SISETT, on or about January 29, 2020, at or near Okanagan College, in the City of Kelowna. in the Province of British Columbia, as the owner of a grey Poodle dog named "Charlie", caused or permitted "Charlie" to seriously injure a domestic animal while in a public place, CONTRARY TO SECTION 49(1)(b) of the Community Charter, SBC 2023, c. 26. [6] And: Count 5: IAN SISETT, on or about July 18, 2021, at or near [omitted for

publication], in the City of Kelowna, in the Province of British Columbia, is the owner of a grey Poodle dog named "Charlie", designated a "Dangerous Dog", and as the owner, has caused or permitted "Charlie" to be deemed likely to kill or seriously injure a person CONTRARY TO SECTION 49(1)(c) of the Community Charter, SBC 2023, c. 26. [7] On behalf of the Regional District, Mr. DeSouza explains that those counts do not allege an offence and the Regional District is not seeking any particular sanction as against Mr. Sisett personally. Rather, the Regional District is asking the court to make a finding that Charlie is a Dangerous Dog as that term is defined under s. 49(1)(b) of the Community Charter. If that were so, then the consequences of that finding would flow from s. 49(10), including a determination as to whether the destruction of the dog would be appropriate. The proceedings on Counts 1 and 5, in contrast with the other counts, are civil in nature and the test is on a balance of probabilities. [8] The difficulty I have with the document is that Counts 1 and 5 allege very specific acts on a very specific day. They also allege a specific section of the Community Charter that was contravened, namely, s. 49(1)(b) and (c). When read, especially in conjunction with the other alleged infractions, it appears that Mr. Sisett is in fact charged with an offence. [9] In reality,

however, s. 49(1) of the Community Charter does not create an offence. [35] The trial judge noted that there is an offence of causing or permitting a dog to be dangerous, under s. 36 of the Bylaw, but that with respect to the incident involving Spike on January 29, 2020, Mr. Sisett had already been charged, convicted at trial, and then acquitted on appeal. [36] The trial judge commented that: [16] While the law now favours substance infinitely over form, I find that the counts as laid in the information insufficient to put Mr. Sisett on notice that that is what is at stake, including the possibility of the destruction of Charlie. Indeed, at the outset of this trial when the prosecution made a brief opening, Mr. Sisett stated his surprise in response. He said, and I quote, "I am here expecting that he is proceeding on long form to get costs and damages payable to the parties involved in the allegation, and now he tells us he's out after forfeiture of my dog. Wow, I'm totally unprepared for that." [17] In my view, Mr. Sisett's surprise is understandable. Counts 1 and 5 seem to allege infractions just like the other counts. They single out Mr. Sisett as an accused and they claim that he "caused or permitted" Charlie to attack a domestic animal or to be dangerous. A reasonable person reading Counts 1 and 5 would conclude that they are called on to defend against those allegations.

It is not reasonable to expect Mr. Sisett, at this hearing, to be prepared to defend against a finding of Charlie being a dangerous dog, the consequence of which could be his destruction. [37] The trial judge noted, as well, prejudice in the manner in which the proceeding had been conducted: [23] Further, allowing the Regional District to continue with Counts 1 and 5 in the manner Mr. DeSouza proposes will result in a profound procedural unfairness. At the outset of this hearing Mr. Sisett sought leave of the court for his wife, Marguerite Sisett, to remain inside the courtroom even though she will be a witness. This was the very first issue that was addressed at the commencement of this trial. [24] On the wording of the information as presented and on the basis that Mrs. Sisett is not named on the information, I held that Mrs. Sisett is not a party to these proceedings and I ordered that she be excluded from the courtroom until she testifies, as I did the other witnesses. At the time, the court had thought, as did Mr. Sisett, this trial was to be about Mr. Sisett's conduct. [25] But if Counts 1 and 5 are not about any alleged wrongdoing on Mr. Sisett's part but rather whether Charlie is dangerous and whether he should be destroyed, it seems to me that Mrs. Sisett, as co-owner, should be entitled to remain in the courtroom to hear the evidence. I go further to say that she

should be entitled to make submissions and ask questions. In other words, as it relates to Counts 1 and 5, she is in fact a party and should be permitted to participate. [26] This is especially true of Count 5 wherein it is alleged that Charlie bit Nahla on July 18, 2021. On the evidence I have heard so far, Mrs. Sisett was home at the time but Mr. Sisett was not. Mrs. Sisett would have been in a much better position to defend against that allegation. [27] Seeing that Mrs. Sisett has not participated at all thus far, it seems to me fundamentally unfair procedurally to allow the Regional District to continue with Counts 1 and 5 in the manner they suggest. [38] The trial judge concluded that: [29] In this case, Mr. Sisett could not be convicted of "causing or permitting" Charlie to be a dangerous dog contrary to s. 49(1) of the Community Charter for the very reason that that section does not create an offence. It is an offence under s. 36 of the Bylaw, but that is not what the Regional District is seeking, and Mr. Sisett had already been acquitted of that in relation to Count 1 in any event. [30] I note parenthetically that in Count 5, it is alleged that Charlie is a dangerous dog by virtue of being likely to kill or seriously injure a person contrary to s. 49(1)(c) of the Community Charter. There is certainly no evidence that Charlie has ever attacked a human. [31] Seeing that

Mr. Sisett could not be convicted of Counts 1 and 5, his motion for a directed verdict ought to be granted. [32] The Regional District submits that any defect could be cured by an amendment to the information pursuant to s. 601(4) of the Criminal Code. In particular, he proposes that an amendment so that Count 1 reads, "Ian Sisett is the owner of a grey poodle dog named Charlie which seriously injured a domestic animal while in a public place contrary to s. 49(1)(b) of the Community Charter" and Count 5 to read, "Ian Sisett is the owner of a grey poodle dog named Charlie, designated a dangerous dog which is likely to kill or seriously injure a person contrary to s. 49(1)(c) of the Community Charter". [33] In my respectful view, the proposed amendments, even if granted, would not cure the heart of the problem. Section 49 of the Community Charter does not create an offence and a conviction under s. 36 of the Bylaw is not what the Regional District is seeking. [34] More problematically, Mr. Sisett was called on to defend against an alleged wrongdoing, not the designation of a dangerous dog. That changes the very nature of these proceedings and his conduct of same. [35] Additionally, Mrs. Sisett has not been permitted to participate. It would be fundamentally unfair to make any decision regarding a dangerous dog designation if a co-owner were not permitted to ask questions, call

witnesses and make submissions. [36] For the foregoing reasons, Mr. Sisett's no evidence motion is granted. Counts 1 and 5 are hereby dismissed. Conviction [39] At the conclusion of proceedings on January 18, 2023, the trial was adjourned until February 21, 2023, when the trial judge gave his reasons for judgment on the five remaining charges (the "Conviction Reasons"). Those reasons for judgment are indexed at 2023 BCPC 47. [40] The first issue dealt with in the Conviction Reasons was whether Charlie is a dangerous dog within the meaning of the Bylaw. The trial judge dealt with that issue in two ways. First, he concluded that the question was not properly before him: [8] Mr. Sisett asked this court to reconsider whether Charlie is actually a Dangerous Dog. However, throughout the proceedings, I informed Mr. Sisett of the rule prohibiting collateral attacks. In Wilson v. The Queen, 1983 CanLII 35 (SCC), the Supreme Court of Canada defined a collateral attack as " an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment" (p. 599). Put in the context of this case, the present charges deal with whether Mr. Sisett failed to comply with the Bylaw requirements given that Charlie had been declared a Dangerous Dog. It is, therefore, not open to this Court to revisit or second-guess the correctness of

Officer McKenney's decision. Specifically in the context of a Dangerous Dog declaration under the Community Charter, Saunders J. said this in Victoria (City) v. Evans, 2023 BCSC 11 at para. 11: [11] As I explained to Mr. Evans in the course of the hearing, whether or not the Dog is dangerous is not an issue on this application. The Dog has been designated as dangerous. Mr. Evans has not taken steps to challenge that designation. It is open to him to seek judicial review of that designation, through filing a petition with this Court. Unless that designation is overturned by this Court, or its operation suspended, the designation is presumptively valid and lawful, and Mr. Evans must fulfill the duties of an owner of a dangerous dog as set out in the Bylaw. [9] Mr. Sisett then suggested that an ordinary citizen cannot be expected to have the skill and knowledge to pursue a judicial review to overturn a declaration. Alternatively, it would cost tens of thousands of dollars to retain counsel for that purpose. While I do not wish to be dismissive of the financial or personal cost involved in pursuing a matter at a judicial review, that remains the appropriate mechanism to appeal Officer McKenney's decision. And decades of jurisprudence, by which I am bound, bar me from second-guessing that declaration in the context of this trial. [41] Second, the trial judge went on to independently

conclude that Charlie is a dangerous dog, referencing the definition in s. 49 of the Community Charter and the serious injuries caused to Spike on January 29, 2020. He prefaced that conclusion by noting: [10] Mr. Sisett then submitted that, even if the Court cannot undo the Dangerous Dog declaration, I need to make a determination for myself as to whether Charlie is dangerous to the public. Only if there is such a danger, would a prosecution for any of these offences be justified. [42] The trial judge noted that the prosecutor's discretionary decision to proceed with charges is not generally reviewable by the court. Having noted that the definition in s. 49 of the Community Charter references serious injury to a domestic animal, he stated: [13] As explained above, Charlie charged at Ms. Michaels and Spike on January 29, 2020 at the Okanagan College. Charlie grabbed Spike into his mouth and shook him violently. This resulted in a broken jaw and abrasions to Spike. This broken jaw required surgical intervention, including that Spike's jaw be wired shut, and a plate be put in. There is no question that that was a serious injury. [43] Thus, he concluded at para. 18, based on part (b) of the dangerous dog definition at s. 49(1) of the Community Charter, that "Officer McKenney's declaration was correct and amply supported by the evidence". [44] The trial judge then considered in turn

each of the remaining five counts from the Form 2 information. With respect to count 2, the trial judge concluded: [22] On behalf of the Regional District, Animal Control Officer Nolan testified that Mr. Sisett, as of March 1, 2021 did not have a proper Dangerous Dog licence for Charlie as required by s. 11 of the Bylaw. Mr. Sisett testified and he agreed with this. However, he says that he was, at the time, appealing the violation ticket for causing or permitting Charlie to become Dangerous. When Officer Nolan contacted him to remind him that Charlie did not have the proper licence, he paid the required fee, albeit under protest. Mr. Sisett says that under the circumstances, the infraction was so technical and so minor, that a conviction should not be entered. In other words, Mr. Sisett relies on the principle of de minimus non curat lex, meaning that the law does not concern itself with trifling things. [23] Although I could imagine some merit to the argument if Mr. Sisett were late in obtaining the licence by a very brief period of time, especially if the matter were under appeal, such is not the case here. Charlie was designated a Dangerous Dog in March 2020. Pursuant to the Bylaw, he would have needed the proper licence by March 1, 2021. It was not until April 12, 2022 that Mr. Sisett paid the required fee and obtained the proper licence. This was late by well over a year.

I cannot accede to Mr. Sisett's argument that this was minor. Accordingly, I find beyond a reasonable doubt that Mr. Sisett failed to obtain the proper licence from the Regional District as required. [45] Count 3 charged Mr. Sisett with "causing or permitting Charlie to become a Nuisance Dog" contrary to s. 34 of the Bylaw. The RDCO alleged that this was based on Charlie having repeatedly charged at the fence of his yard. This charge was dismissed on the basis that the evidence referenced only one incident in which the Sisetts' three dogs had charged at the fence, and that evidence was not specific to Charlie. In any event, the trial judge referenced the lack of evidence as to Mr. Sisett's active participation or even acquiescence with respect to Charlie's behaviour, and concluded: [32] I think the same thing can be said here. Assuming that it was Charlie who was charging at the fence and that he did it repeatedly, there is no evidence that Mr. Sisett actively participated in encouraging this behaviour, or that he knew Charlie had such a propensity and did nothing about it. Consequently, that element of the offence has not been made out beyond a reasonable doubt. For any or all of the above three reasons, Mr. Sisett ought to be acquitted of Count 3. [46] The final three counts were dealt with concisely as follows: Count 4 - kept in a locked Enclosure [33] Because Charlie was

declared a Dangerous Dog, Mr. Sisett was required to keep him within a locked Enclosure in accordance with s. 39(2) and Schedule C of the Bylaw. On July 18, 2021, Ms. Dorosh saw Charlie outside any such Enclosure. Mr. Sisett testified and agreed that that was so. Mr. Sisett's only comment was that it would be cruel to lock his dog up in such an Enclosure all the time. I do not see that to amount to a defence, nor do I necessarily agree with that assertion, given the need to protect the public. In any event, it is not for this Court to re-write the Bylaw. Accordingly, I find beyond a reasonable doubt that Charlie was not kept in an Enclosure in accordance with the Bylaw requirement. Count 6 - failure to post a sign [34] Section 40 of the Bylaw requires the owner of a Dangerous Dog to post a sign at the front and backyard in accordance with Schedule F of the Bylaw. This sign depicts a vicious looking dog and warns people that there is a Dangerous Dog on the premises. It also bears the logo of the Regional District and cites the Bylaw pursuant to which the sign was posted. Instead of posting the prescribed sign, the Sisetts opted to use a novelty sign which says "Beware! Vicious Beast!" and contains what appears to be some caricature or a cartoon depiction of an animal. [35] It is quite clear that the sign the Sisetts used is completely inadequate to achieve the legislative

purpose of warning the public. Their sign is mundane if not humorous. It does not convey the serious message that it is meant to. It also lacks official character in that it does not bear the Regional District logo nor does it cite the appropriate bylaw. In any event, the Sisetts clearly did not post the required sign. To this, Mr. Sisett offered no defence other than that his family is not prepared to portray their Charlie as a Dangerous Dog to the public. This count has been made out beyond a reasonable doubt. Count 7 - failure to microchip [36] Section 41 of the Bylaw requires Mr. Sisett to microchip Charlie within 15 days of the Dangerous Dog declaration. Mr. Sisett agrees that he failed to do so and offered no defence. This count has also been made out beyond a reasonable doubt. [47] Thus, Mr. Sisett was convicted of counts 2, 4, 6, and 7, and acquitted of all other charges. The Sentencing Hearing Submissions [48] The sentencing hearing commenced on February 21, 2023, immediately following the delivery of the Conviction Reasons. [49] Mr. Sisett spoke first. He advanced a claim for costs in respect of the charges on which he had been acquitted. He asserted that he was entitled to such costs as a remedy under the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter]. His claim for

costs included the amount the Sisetts had paid to obtain the release of Charlie from the pound and to take him to a veterinarian after such release. [50] With respect to the charge on which he was convicted, Mr. Sisett argued that there should be a nominal penalty. [51] Counsel for the RDCO then responded, noting that there had been no notice under the Constitutional Question Act, R.S.B.C. 1996, c. 68, with respect to a Charter remedy being sought. He went on to argue that, in any event, the seizure of Charlie was authorized by a warrant, and there had been no challenge made to that warrant. [52] With respect to penalty, the RDCO sought an order for $6,000 in fines and $7,000 in costs of the prosecution, as well as payments to the Doroshes and a series of listed orders. [53] With respect to the fines, counsel for the RDCO noted that the maximum fine under the Offence Act was $2,000 per count, and sought a fine of $1,500 on count 2, $2,000 on count 4, $2,000 on count 6, and $1,500 on count 7. He argued that the maximum fine should be imposed on counts 4 and 6 because, had there been a proper enclosure or signage, the Doroshes might have been alerted and the entire incident prevented. [54] With respect to the costs of the prosecution, counsel submitted: local governments are not like the Crown Provincial or Crown Federal. They do not have so-called counsel that are either

in-house or on a set package fee for cost control. If they have a matter, like - that has to go to trial, and goes this path, they are paying for the full ride extra to the budgets they already have to deal with and are to determine. So the legislature has sought fit to make some allowances for compensation on prosecutions. [referring to s. 416(2) of the LGA] And it's the last part I just wanted the court to be aware of because there was a cost of the prosecution. With respect to costs, we're seeking $7,000 for the costs of the prosecution. This includes a substantive portion of bringing in a witness like Ms. Dorosh from the Lower Mainland. I can assure the court that the bill is significantly more than that, but there's a whole bunch of ranges to that. [55] When asked by the trial judge about what sort of evidence there was in support of the $7,000 number, counsel stated: Your Honour, this is our submission in terms of costs of the prosecution. I can certainly provide additional documentation if the court wishes. I'm - I'm conscious of the privilege issues with respect to a bill but, you know, I'm prepared to do so if the court needs something specific. But the court can imagine what it will cost to have not just a three day trial but [indiscernible/teleconference] process with applications, with witnesses, with a trial that was set to proceed to court. All of these things

could have been avoided but - and, again, right from 4,000, on our initial [sentencing position], to seven is not a significant amount - not - not significant for a person who owns a seven million dollar property. [56] With respect to the restitution order, counsel referenced s. 417(c) of the LGA and continued: we're seeking $1,000 for the Dorosh dog and $5,000 for [indiscernible/teleconference] Michael's dog. And that's dollars that would actually go to those victims for their costs. [57] Mr. Sisett gave a brief reply after the RDCO's submissions. He expressed concern, among other things, that the RDCO was seeking "costs for matters which were dismissed". He expressed concern generally that "all of this seems like an oppressive burden by the state or municipal government". [58] The trial judge directed that counsel provide Mr. Sisett with a written summary of the submission he had made on sentencing in advance of the continuation, with Mr. Sisett to be given an opportunity to make further submissions at that time. [59] When the hearing resumed on March 21, 2023, Mr. Sisett advised the court that he had not received the written summary. He was provided with a copy, and the matter was stood down until 10:30 a.m. to allow Mr. Sisett to review the summary and prepare for the continuation of the hearing. [60] When the hearing continued, Mr. Sisett objected to the notion that any

financial orders should be based on the value of his home. He objected that the injunctive relief that was sought was "in the nature of mandamus, a prerogative writ remedy and outside any notice or authority of the charges before this honourable court". He handed the trial judge a document objecting to any payment to the Doroshes as "unrelated to charge or conviction, and result of third party trespass of unsupervised dog unlawfully at large". The document argued that the costs sought by the RDCO were "unsubstantiated in amount and entitlement for regulatory offences", and sought an award of costs in his favour "for substantial success in contest and dismissal of 3 of 7 counts". Reasons for Judgment [61] Immediately following the conclusion of those submissions, the trial judge read his reasons for judgment on sentencing (the "Sentencing Reasons"). Those reasons have been transcribed and are indexed at 2023 BCPC 75. [62] With respect to the applicable penalties, the trial judge noted the $2,000 maximum fine per count. He also set out the applicable sentencing 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. [63] With respect to the application of those principles to the fines to be imposed, he concluded: [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. [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) [64] I note that in the course of submissions, counsel for the RDCO had sought to rely on without prejudice communication with Mr.

Sisett. That without prejudice communication did not reserve the right to bring it to the attention of the court after all matters other than costs had been decided. The trial judge raised concerns about settlement privilege at the time it was referred to, and noted in the Sentencing Reasons at para. 12 that he had not considered that correspondence. [65] With respect to the costs of the prosecution, the trial judge ruled: [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. [66] With respect to the requested payment to the Doroshes, the trial judge noted that s. 417(1) of the LGA provides that: If a person is convicted of an offence (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. [67] With respect to the restitution order, he concluded: [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. [68] With respect to the other orders sought by the RDCO, the trial judge concluded: [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. [69] He later pronounced these orders, which appear in the Order at para. 3 under the heading "Prohibition Orders", as follows: [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. [70] The trial judge added the following paragraph at the conclusion of his reasons for judgment: [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). [71] I understand that, subsequent to the imposition of his sentence, Mr. Sisett has paid the fines and complied with the prohibition orders, but obtained an order staying payment of the $1,000 to the Doroshes and the $7,000 "costs of the prosecution" pending determination of this appeal. Positions of the Parties The Appellant [72] With respect to the fines, Mr. Sisett argued that they should be reduced to the amount of the ticketing fines, based on the fact that this was a first conviction and in light of principles of proportionality in punishment. He pointed to the fact that what he referred to as the "published amount" of the bylaw fines for the counts on which he was convicted, as set out in the table at page 18 of the Bylaw, totals only $1,900, while the fines actually imposed totaled $4,000. Mr. Sisett also submitted that the trial judge must have taken into account conduct for which he was not convicted. He submitted that the fines were not proportionate to the gravity of the offences and the degree of responsibility of the offender. [73]

Mr. Sisett disputed the trial judge's treatment of his knowing refusal to follow the Bylaw as an aggravating factor, when his conduct was due to a serious concern for animal welfare. He described himself as a conscientious objector, and suggested that his concerns for "fair process and fair laws" have been unduly mischaracterized as wilful disobedience giving rise to a greater punishment. [74] With respect to the payment to Mr. Dorosh, Mr. Sisett submits that this order should be struck, as any costs incurred were unrelated to the acts for which he was convicted and should be considered the result of trespass by Nahla being unsupervised and unlawfully at large. He submits that Charlie was in his own yard, behind a fence that effectively kept him within the yard. He argued that the $1,000 figure includes provision for injuries suffered by Ms. Dorosh, when her evidence was that her own dog bit her. He says that it was unreasonable to suggest that the lack of a sign caused the injury to Nahla, given that she was left unsupervised and allowed to trespass into the neighbour's property. He says that it is inappropriate for the court to order payment to someone who should have been ticketed themselves for allowing their dog to be at large. [75] Mr. Sisett also submits that the evidence of injury to Nahla was tendered primarily in respect of the counts that were dismissed, and that the

trial judge should therefore not have considered it. [76] With respect to the prohibition orders, Mr. Sisett argues that these orders were not prohibitory at all, but rather were mandatory injunctions, which are not authorized by s. 417 of the LGA and are beyond the jurisdiction of a Provincial Court judge. He also notes that his spouse, who is a co-owner of both the property and the dog, was not party to this proceeding and thus it was inappropriate to make in rem orders. [77] With respect to costs of the prosecution, Mr. Sisett submits that the order for payment of costs to the RDCO is overly punitive, unsubstantiated in amount, and does not reflect Mr. Sisett's substantial success with respect to three of the seven counts. He notes that there was no actual evidence of the amount of costs incurred. He submits that much of the first three days of trial was spent dealing with evidence and submissions on the charges that were dismissed. He submits that it was unreasonable for the RDCO to pursue those charges that were dismissed, and that rather than rewarding the RDCO for its conduct, the court should instead have ordered costs in his favour. He accepts that it would have been appropriate for the trial judge to order that the parties' respective costs entitlements be set off, leaving each party to bear their own costs. [78] Mr. Sisett disputed the trial judge's dismissal of his

claim for damages and costs under the Charter. He focused on two main claims: first, what he alleged was a wrongful seizure of Charlie pursuant to the warrant granted on August 27, 2021; and second, what he alleged was an unreasonable bringing of the charges that were dismissed at trial. With respect to the seizure of Charlie, he alleged that he was wrongfully compelled to incur both impoundment fees and veterinary costs. With respect to the three charges that the trial judge dismissed, he submitted that those charges were laid simply to colour the evidence so that the court would believe that Mr. Sisett's non-compliance with the Bylaw was wilful. With respect to the question of costs, he relied both on the Charter and s. 809 of the Criminal Code, R.S.C. 1985, c. C-46. [79] Finally, Mr. Sisett made extensive submissions challenging the trial judge's conclusions that Charlie was a dangerous dog. He described it as an "unjustified declaratory sentence" imposed on Charlie. It is clear from Mr. Sisett's submissions that he is very concerned about the potential for a future application for Charlie to be destroyed. He expressed concern that the trial judge's statements might be considered a "second strike", and that if there is a future court case a judge might consider that to be "strike three" for Charlie. [80] Mr. Sisett expresses concern that the trial judge threw out the charges

about Charlie being a dangerous dog, then brought discussion of the issue back in to the Sentencing Reasons for no good reason. He suggests that the trial judge, by choosing to reference this question in his judgment, took the discussion beyond the prior conclusion of a bylaw officer and made it a judicial declaration, all to Charlie's prejudice. [81] When pressed, Mr. Sisett acknowledged that there is no formalistic three-strike process. He is concerned, however, that the judge would not let him tender evidence of Charlie's gentle nature and refused to consider questions of provocation and trespass. [82] With respect to these points, I note that: a) Counsel for the RDCO disputed the assertion that Mr. Sisett was limited in tendering any evidence, and said that at no point did the trial judge rule any evidence about Charlie's disposition to be inadmissible. b) The trial judge, at para. 10 of the Conviction Reasons, said that it was Mr. Sisett who submitted that he needed to make a determination for himself as to whether Charlie is dangerous. c) The Order entered in respect of the sentencing contains no declaration as to Charlie being a dangerous dog. The Respondent [83] Dealing with the alleged "declaratory sentence", the RDCO submitted that the fact that Charlie was a dangerous dog was a factual finding that was a necessary element of the four counts on which Mr. Sisett was

convicted. [84] With respect to sentencing generally, the RDCO submitted that the trial judge appropriately referenced the sentencing principles in ss. 718 and 718.1 of the Criminal Code. [85] With respect to the amounts of the fines, the RDCO noted that the maximum fine on each count was $2,000, and that the fines actually imposed ranged from $500 to $1,500 per count. The RDCO noted that at trial, Mr. Sisett did not make a submission as to an appropriate amount for the fines; rather, he simply asked that fines be modest. He did not argue at trial that the fines should be limited to the amount that would have been applicable had the RDCO proceeded by way of a ticket. The RDCO argued that where the prosecution elects to proceed by way of a summons and a full hearing, the court has jurisdiction to impose any fine up to the maximum amount, and there is no basis to limit the amount beyond that. [86] With respect to the payment to Mr. Dorosh, the RDCO submitted that it was entirely reasonable for the trial judge to have concluded that the veterinary bills incurred by the Doroshes were part of the "harm that resulted" from the failure to keep Charlie in an enclosure and to warn neighbours through posting a proper sign. [87] With respect to the prohibition orders, the RDCO submitted that these orders track the relevant provisions of the Bylaw, and that Mr. Sisett would have been

required to comply with those provisions regardless of any specific order made by the trial judge. [88] With respect to costs, the RDCO submitted that the statutory provision for payment of the "costs of the prosecution" leaves the question of costs entirely at large, that there is no case law that sets out any sort of document that must be tendered in order to claim costs, that no evidentiary basis is required for a costs order, and that the question of costs is highly discretionary. The RDCO submits that the statutory provision should be read as implicitly providing for full indemnity. [89] The RDCO notes as a matter of practicality, and as a potential explanation of the provision, that municipalities and regional districts (other than those large enough to have an in-house legal department) are required to retain external counsel to conduct bylaw prosecutions, and the statutory provision recognizes the principle that those who violate bylaws should bear the resulting costs. [90] With respect to the allegation of Charter infringements, the RDCO argued that this was first raised by way of an oral submission at the sentencing hearing, that evidence relevant to the search and seizure issue (such as the ITO) was not entered at trial, that Mr. Sisett has never given notice to the Attorney General as required by the Constitutional Question Act, and that it was entirely appropriate

for the trial judge to decline to consider those claims. Legal Context Dangerous Dog Provisions under the Community Charter [91] As noted above, s. 49 of the Community Charter provides what are described in the section heading as "special powers in relation to dangerous dogs". The definition for "dangerous dog" in s. 49(1) is set out above, and focuses on whether the dog has, or is likely to, kill or seriously injure either a person or a domestic animal. Sections 49(2) through (6) deal with procedures for seizure of a dog that an animal control officer believes to be a dangerous dog. [92] Sections 49(10) and (11) deal with the process to be followed where an animal control officer seeks the destruction of a dog: (10) In addition to any other authority, if an animal control officer has reasonable grounds to believe that a dog is a dangerous dog, the officer may apply to the Provincial Court for an order that the dog be destroyed in the manner specified in the order. (11) A dog that has been seized under this section may not be impounded and detained for more than 21 days unless court proceedings for a destruction order are commenced within that time. [93] While there is no destruction order in the present case, it is clear from submissions that the risk of such an order being sought in future is something that concerns Mr. Sisett greatly. [94] In Santics v. Vancouver (City)

Animal Control Officer, 2019 BCCA 294, leave to appeal ref'd [2019] S.C.C.A. No. 378, the Court of Appeal addressed provisions in the Vancouver Charter, S.B.C. 1953, c. 55, that are identical to those found under s. 49 of the Community Charter. It focused in particular on whether those provisions grant the court the ability to make what had become known as "conditional orders"--that is, orders that the dog not be destroyed subject to certain conditions, which might include terms as to the current owner's ongoing ownership of the dog, or a requirement that the dog be put up for adoption. Justice Abrioux noted at para. 22 that a number of other Canadian jurisdictions have enacted legislation that expressly provides for conditional orders. However, he concluded at para. 52 that the wording of the British Columbia statute does not support the ability to make such orders. [95] Justice Abrioux did, however, confirm that the Provincial Court has discretion with respect to whether to order that a dog be destroyed: [65] Accordingly, while the satisfaction of the statutory definition will be sufficient to authorize the seizure of a dog under s. 324.1(2), I am of the opinion that more is required for a destruction order under s. 324.1(10). In Dempster, this court reasoned that the Provincial Court on a destruction application "is called upon to consider not only whether a dog has in the

past killed or injured but also, and more importantly, whether the dog is likely to do so in the future" (emphasis added). I find these comments to be of assistance in the present statutory context. [66] In my view, the overarching question on an application for a destruction order is whether the dog poses an unacceptable risk to the public -- that is, whether it is likely, on a balance of probabilities and given the totality of the evidence, to kill or seriously injure in the future. If so, then the dog is dangerous within the meaning of s. 324.1(10) of the Vancouver Charter and s. 49(10) of the Community Charter and must be destroyed. If not, then the dog is not dangerous within the meaning of those provisions and the application ought to be dismissed, with the dog returned to its owner. [67] Determining whether a dog is likely to kill or seriously injure in the future requires a Provincial Court judge, who is in the best position to consider the factual circumstances underlying the application, to perform a contextual and prospective analysis of the danger posed by the dog to the public. To that end, the judge must consider the two factors set out in s. 324.1(3), being whether the dog was acting to prevent an unlawful act and whether it was performing law enforcement work. The dog's past behaviour, such as whether it satisfies either of the first two parts of the statutory

definition of "dangerous dog", will also clearly be relevant. [68] Other factors that may bear upon a dog's prospective dangerousness include its past and present temperament and any extenuating circumstances that would make a future attack unlikely. One example of extenuating circumstances, in my view, could involve a situation where a dog "seriously injured a domestic animal in a public place", but the evidence revealed that the dog was defending its owner or others from an attack by a third party's dog. There may well be others. [69] As for the issue of onus, I agree with the view of Madam Justice Southin in R. v. Wormell, 2005 BCCA 328 at paras. 33-34, that the concept of burden of proof does not naturally lend itself to the assessment of future events. Rather, the Provincial Court on a s. 324.1(10) application must consider the totality of the available evidence -- regardless of which party adduced it -- to determine whether, on a balance of probabilities, the dog is likely to kill or seriously injure in the future. [70] Nothing in these reasons should be interpreted as detracting from the discretion of an animal control officer to craft particular remedies with the dog's owner rather than applying for a destruction order. It is evident from the case law both pre- and post-Kuo that animal control officers exercise considerable discretion in their approach to dogs that

satisfy the statutory definition of "dangerous dog". This includes entering into agreements with the owner for rehabilitation plans, neutering, adoption and the like. The animal control officer's application for a destruction order is usually a matter of last resort after other less draconian measures have been attempted and, in the opinion of that officer, been unsuccessful. In my view, where the particular circumstances of a given case lead the animal control officer to move beyond rehabilitation measures and apply directly to the Provincial Court for a destruction order, the officer is authorized to do so under s. 24.1(10) of the Vancouver Charter or s. 49(10) of the Community Charter. Bylaw Enforcement by a Regional District [96] Part 12 of the LGA provides for bylaw enforcement by regional districts. Section 413 authorizes the board of a regional district to make bylaws for the purposes of enforcing the bylaws of the regional district by fine, imprisonment, or both. [97] Section 414(1) of the LGA makes applicable to regional districts Part 8, Division 3 of the Community Charter, which provides a framework for the issuance of tickets for bylaw offences. That Part includes: a) s. 264, which allows a council to designate certain bylaws for which a bylaw enforcement officer "may" enforce the bylaw by means of a ticket; b) s. 265, which allows a council to specify a fine that

applies to a ticket; c) s. 267, which allows a person who receives a ticket to either pay the fine or dispute the allegation contained in the ticket; d) ss. 269-270, which provide for a dispute hearing; and e) ss. 271-272, which provide for a failure of a person to respond to a ticket. [98] Sections 416 and 417 of the LGA provided (at the time of trial): Bylaw contraventions -- offences and prosecutions 416. (1) If a bylaw establishes a regulation or requirement to be observed in a regional district, a person who contravenes the regulation or requirement commits an offence that is punishable in the same manner as if the bylaw had expressly forbidden persons from doing or refraining from doing the act. (2) In a prosecution for an offence against a regional district bylaw, the justice or court may impose all or part of the penalty or punishment authorized by the bylaw, this Act or the Offence Act, together with the costs of prosecution. Additional sentencing powers in relation to Offence Act prosecutions 417. (1) If a person is convicted of an offence (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. (2) An order under subsection (1) must specify the duration of the order, which may not exceed one year. (3) A person who fails to comply with an order under subsection (1) commits an offence and is liable on conviction to a fine of not more than $10,000 or to imprisonment for not more than 6 months, or both. Offence Act Provisions Governing Sentencing [99] Pursuant to s. 83(1) of the Offence Act: If an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the justice who convicts a person who commits the offence. [100] Section 133 of the Offence Act provides that: If, in any proceeding, matter or thing to which this Act applies, express provision has not been made in this Act or only partial provision has been made, the provisions of the Criminal Code relating to offences punishable on summary conviction apply, with the necessary changes and so far as applicable, as if its provisions were enacted in and formed part of

this Act. [101] The applicable Criminal Code provisions include ss. 718 and 718.1: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [102] The trial judge also referenced s. 718.2(a) of the Criminal Code, which requires a sentence to be "increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender". He also referred to the principle of totality, while acknowledging that it normally refers to sentences of imprisonment (see s. 718.2(c)). However, he concluded that the principle of totality

required him to consider whether the overall financial sentence would be unduly harsh. Costs Issues [103] There are two costs issues in this case: the first relates to the trial judge's order that Mr. Sisett pay costs of $7,000 to the RDCO; the second relates to the trial judge's dismissal of Mr. Sisett's application for relief under the Charter, including an award of costs. [104] I begin with the general principle that costs are seldom awarded in criminal cases: R. v. Melrose, 2016 BCCA 292 at para. 30, leave to appeal ref'd [2016] S.C.C.A. No. 570. [105] Mr. Sisett relied in support of his application for costs on R. v. Pang, 1994 ABCA 371, which dealt with a charge under the Criminal Code. The reasoning in Pang is consistent with the subsequent decision in R. v. 974649 Ontario Inc., 2001 SCC 81, which arose from regulatory charges under the Ontario Occupational Health and Safety Act, R.S.O. 1990, c. O.1, the procedures for which were governed by Ontario's Provincial Offences Act, R.S.O. 1990, c. P.33. [106] While the primary issue in 974649 Ontario Inc. was whether a Provincial Court official had jurisdiction to grant a Charter remedy, Chief Justice McLachlin did go on to consider the availability of costs order generally within quasi-criminal proceedings, noting that: [87] Crown counsel is not held to a standard of perfection, and costs awards will not flow from every

failure to disclose in a timely fashion. Rather, the developing jurisprudence uniformly restricts such awards, at a minimum, to circumstances of a marked and unacceptable departure from the reasonable standards expected of the prosecution. I fail to see how the provision of an expedient remedy in such cases, from a trial court that is not only competent but also ideally situated to make such an assessment, risks disrupting the existing system of justice. [88] Indeed, a failure to recognize this jurisdiction may arguably result in far more disruption of the administration of justice, by requiring resort to another forum to obtain an appropriate and just remedy, with all the attendant delays, expense and inconvenience. Most importantly, it may, as a matter of practical reality, deprive an accused of an appropriate and just remedy for even flagrant violations of his or her Charter rights, and thus render illusory both these guaranteed protections and the promise of their enforcement. [89] In summary, the provincial offences court's role as a quasi-criminal court of first instance weighs strongly in favour of an expansive remedial jurisdiction under s. 24 to promote complete resolution of Charter issues in the forum best situated to resolve them. In this light, authority to discipline egregious incidents of non-disclosure through awards of legal costs is consistent with - and would

enhance - the role performed by these courts in the administration of criminal justice. [107] The applicable general principles are helpfully summarized in Steven Penney, Vincenzo Rondinelli & James Stribopoulos, Criminal Procedure in Canada, 3rd ed. (Toronto: LexisNexis, 2022): §10.79 Courts may award costs against the Crown in both criminal and regulatory proceedings. Costs may be ordered in three types of cases: (i) as remedies for Charter violations under s. 24(1); (ii) as remedies for state misconduct not involving any Charter violation; and (iii) in exceptional circumstances, such as test cases. Unlike in civil proceedings, however, costs awards are extraordinary: they do not flow routinely to defendants successful on the merits. That said, costs awards are not exceptionally rare. They have played a particularly important role, for example, in reinforcing the Crown's disclosure obligations. [Footnotes omitted.] [108] British Columbia's Offence Act does contain a provision that on its face permits awards of costs--s. 79(1) provides that: The justice may, in his or her discretion, award and order costs the justice considers reasonable and not inconsistent with the fees established by section 80 to be paid (a) to the informant by the defendant, if the justice convicts or makes an order against the defendant, or (b) to the defendant by the informant, if the justice dismisses

an information. [109] However, those provisions have been interpreted quite restrictively. In R. v. Port McNeill (Town) (1998), 158 D.L.R. (4th) 471, 1998 CanLII 3777 (B.C.C.A.), the majority of the Court of Appeal, after a lengthy historical review, including a discussion of the history of comparable provisions in the Criminal Code, concluded that the section should be construed narrowly. At paras. 29-30, Justice Huddart commented that: [29] Were I of the view that this court is free to interpret the provisions without regard to their past construction, I would prefer the broader meaning given to "costs" by Lord Devlin in Berry, supra, as did Pullan P.C.J. in Alsip (Private Prosecutor) v. Hansell (30 November 1995), (Man. Prov. Ct.); [1995] M.J. No. 527 (Q.L.). Lord Devlin understood the term "costs" to mean all expenses properly incurred in the defence or prosecution of a complaint, whether or not taxable under a particular tariff. That, in my view, would be the meaning a reader of the Offence Act would give to the word if she did not have regard to the legislative evolution of the section. This interpretation would have the significant advantage of giving meaning to a provision that has had no practical effect for a considerable period of time. [30] This is not to say that a justice charged with determining whether to award costs under the Offence Act, and if so, what costs

would be reasonable, would exercise a discretion uncontrolled as to items or amounts, if Lord Devlin's understanding of the meaning of "costs" were adopted. A justice would be required to exercise his discretion judicially in accordance with guidelines developed in the authorities and to ensure that his award was not inconsistent with the fees established by the Tariff for the items included in it or for any other fees or allowances to be paid to the persons mentioned in it. [110] At para. 55, Huddart J.A. concluded that the British Columbia courts should apply the long-standing interpretation by trial courts of ss. 809 and 840 of the Criminal Code to ss. 79 and 80 of the Offence Act. She noted at para. 56 that: [56] Moreover, to accept the interpretation of s. 79 of the Offence Act sought by the appellant would be to permit summary conviction courts to award reasonable costs not only to a discharged accused as in this case, but also to the Crown. I am not one of those who fears opening Pandora's Box in this regard. It is to be expected that courts would be as cautious in awarding costs to the Crown at the trial level as they have proven to be in awarding costs to appellants in King, Trask, and C.A.M., i.e. that the cases in which costs would be awarded would have something remarkable about them to justify the exceptional order. Rather, I am persuaded by the considerable

reading urged on me by counsel that the complexity of the issue requires a legislative response, [111] Mr. Sisett relied on general principles with respect to costs. Given the rareness of costs awards in criminal matters, and the codification of costs rules in most civil proceedings, there is little in the way of recent authority setting out common law principles. I note in the civil context the judgment in Peace River Partnership v. Cardero Coal Ltd., 2023 BCCA 351, a case involving the interpretation of a contractual covenant for the unsuccessful party in any litigation arising from the contract to pay the legal costs of the successful party. Because the entitlement to costs arose from the contract, and was not grounded in the Supreme Court Civil Rules, the judgment is of some assistance in identifying general principles that may apply. [112] After noting that the court will generally uphold a contractual covenant as to legal costs, the Court went on to discuss when it might exercise its discretion not to do so. It cited various cases, including, at para. 139, the following excerpt from Schafer v. Schafer, 2023 ABCA 117: [73] Any contractual right to costs is always subject to the court's discretion: Mark M. Orkin, Robert G. Schipper, Orkin on The Law of Costs, 2nd ed (Toronto: Thomson Reuters Canada, 2019) (loose-leaf updated 2020) at 219.1.1. The circumstances when a court

may exercise its discretion to award costs in a manner different than what was agreed upon between the parties was recently addressed in Driving Force [Inc. v. I Spy Eagle Eyes Safety Inc., 2022 ABCA 25] paragraph 72: Even if there is a binding covenant to pay solicitor and client costs, the trial judge has a discretion to depart from that covenant having regard to the way the litigation was conducted, the proportionality of the expense related to the amounts in issue, the degree of success achieved, and other relevant factors: [citations omitted]. [74] Therefore, we do not accept that a court should only exercise its discretion to not award contractually-agreed upon solicitor client costs where there has been abusive forms of litigation or other misconduct, although that clearly may be a relevant factor. Proportionality of the expense and degree of success achieved may also be considered. [113] The Court in Peace River Partnership continued: [146] As noted above, although this Court has generally favoured the enforcement of contractual cost indemnity provisions, we do not read the relevant authorities as precluding a residual discretion on the part of the court to depart from such provisions. Rather, we accept the principle espoused in Orkin, as endorsed by the Alberta Court of Appeal in Schafer, that any contractual right to costs is always subject to the court's discretion.

In our view, this is consistent with the overriding authority, and responsibility, of the court to manage and supervise its own processes. [149] As to when that discretion should be exercised, we do not think it is helpful to enumerate a list of specific factors that would justify doing so. Each case will turn on its specific facts. We agree with the court in Schafer that the circumstances in which a court may decline to award contractual costs are not limited to cases in which there has been litigation misconduct, although that may be a relevant factor. Nor do we think "extraordinary" circumstances are necessarily required. Rather, the court must consider all relevant circumstances, including factors such as degree of success and proportionality in terms of expense, keeping in mind that the overriding objective of the Supreme Court Civil Rules is to secure a "just, speedy and inexpensive" determination of every proceeding on its merits: R. 1‑3(1). [114] The Court concluded at para. 158 that the trial judge had erred in failing to consider a formal offer to settle tendered by one of the parties. This was an error in principle that provided a foundation for appellate intervention. It ordered at para. 177 that the parties bear their own costs after the date of that formal offer. [115] With this background in mind, I turn to the specific order made in this case: an award of $7,000

in respect of the "costs of the prosecution". As noted above, the order was made on the basis of s. 416(2) of the LGA, which stated: In a prosecution for an offence against a regional district bylaw, the justice or court may impose all or part of the penalty or punishment authorized by the bylaw, this Act or the Offence Act, together with the costs of prosecution. [Emphasis added.] [116] At the hearing of the appeal, neither party provided legal authority with respect to this provision. After preliminary review of the issue, I sought submissions from the parties with respect to three cases that I will now describe. [117] The first is R. v. Schaff, 2003 BCPC 244, which dealt with the sentencing of an offender following his conviction for building a storage shed without a building permit. The regional district had invited the trial judge to grant a suspended sentence with terms that the offender (a) comply with the bylaws, and (b) pay to the regional district, in the form of restitution, $1,100 in respect of the costs of prosecution. The trial judge declined to follow that recommendation. [118] It is clear from the reasons for judgment that the order was sought pursuant to s. 89(3) of the Offence Act, which permits suspended sentences that may specify that the defendant must "make restitution or reparation to any person aggrieved or injured for the actual loss or damage caused by

the commission of the offence". At para. 12, the trial judge questioned whether the cost of prosecuting an offence was in fact "caused by the commission of the offence". The trial judge noted that s. 79 authorizes some costs, but referenced the Court of Appeal judgment in Port McNeill, and acknowledged that the availability of such costs is limited. [119] At paras. 18-19, the trial judge commented that: [18] The Local Government Act provides for a board to make bylaws for inflicting costs (s. 266), and s. 267(2) provides: In a prosecution for an offence against a municipal bylaw, the justice or court may impose all or part of the penalty or punishment authorized by the bylaw, this Act or the Offence Act, together with the costs of prosecution. [19] The District did not seek costs under this provision. [120] At para. 21, the trial judge commented that, even if he had the jurisdiction to order the payment of costs of the prosecution, he would decline to make such an order, explaining: [22] I have a concern, when considering imposing costs against a citizen, about deterring citizens from pursuing legitimate defences. My concerns were articulated in R. v. Higgins (1977), 1 C.R. (3d) 382 (N.S. Co. Ct.), by Sullivan Co. Ct. J., dealing with costs in a criminal appeal. He said: ... Costs should not be so high that they act as a deterrent to the legitimate pursuit of appeals. One must

be certain that potential costs will not prevent access to courts of appeal because of fear of the financial burden if the appeal is unsuccessful. An appeal court should consider whether the appeal had merit or whether it was frivolous. In the latter case the award of costs should compensate the respondent as fully as possible for the actual expense incurred. ... In civil matters costs have reached such levels that many legitimate claims are not proceeded with in the courts... Costs therefore, in my opinion, have become a factor in making justice unavailable to an increasing number of people in civil cases. This cannot be allowed in criminal matters. [23] See also R. v. Northerly Electric Co. Ltd. (1956), 24 C.R. 201, at 203-204, where McRuer C.J.H.C., said that courts should only order costs against offenders in a very rare case. He did order the offenders to pay costs in the exceptional case before him. He interpreted the provision for costs provided in the Criminal Code as a provision for a penalty. [25] In R. v. C.A.M., [1996] S.C.J. 28, Lamer C.J.C., speaking for the Court, said, "the prevailing convention of criminal practice is that whether the criminal defendant is successful or unsuccessful on the merits of the case, he or she is generally not entitled to costs." Courts do impose costs in exceptional cases such as where the prosecution has been frivolous, conducted for

an oblique motive, or taken by the Crown as a test case. See R. v. King, (1986) 26 C.C.C. (3d) 349 at 351 (B.C.C.A.), Lambert J.A. for the Court, dealing with costs on appeal. See also R. v. Northerly Electric Co. Ltd. (1956), 24 C.R. 201, at 203-204, McRuer C.J.H.C., dealing with costs against offenders. [26] I adhere to the cautious approach applied in C.A.M., King, and Northerly Electric and would award costs only if there was something remarkable about the case to justify the exceptional order. (I have paraphrased what Huddart J.A. said in Port McNeil (cited above), at para. 56.) Here, the offender is pursuing a serious issue and there is nothing about this case to justify an exceptional order. I decline to make the probation order with a term that the offender pay the costs of prosecution. [121] The second case is Smith v. Central Okanagan (Regional District), 2013 BCSC 1063, a judgment dealing with an application for costs after a decision on appeal from an order of a Provincial Court judge under s. 49(10) of the Community Charter. Justice Barrow held at para. 4 that, although this was an appeal from a civil order under s. 49(10), it was governed by the Offence Act and the applicable provision for costs of an appeal was s. 112 of that act. Section 112(1) provided: If an appeal is heard and determined, or is abandoned or is dismissed for want of prosecution, the appeal

court may make any order with respect to costs that it considers just and reasonable. [122] At paras. 4-5, Barrow J. referenced s. 79 of the Offence Act and noted the discretion to award costs under this section was effectively meaningless, citing the judgment in Port McNeill. He described the parties' positions at paras. 6-12, noting that both parties referred to the tariff in Appendix B of the Supreme Court Civil Rules, and that both parties claimed to have been successful on two of the three issues on appeal. [123] Justice Barrow described the applicable legal principles as follows: [14] Section 112 of the Offence Act confers a broad discretion to award costs. It provides that "the appeal court may make any order with respect to costs that it considers just and reasonable". Notwithstanding that broad discretion, the law has long limited the award of costs, whether at trial or on appeal, in criminal cases. In H.M.T.Q. v. Neustaedter, 2003 BCSC 39, the defendant successfully appealed a determination that an allegation of speeding had been made out. He sought costs of the appeal. Stromberg-Stein J. (as she then was) refused to grant the order. She noted that while s. 112 confers a broad discretion, the discretion should be exercised in accordance with the similar provision in the Criminal Code at s. 826 as was done in R. v. Port McNeill (Town). Section 826 of the Criminal Code

is, for all practical purposes, identical to s. 112 of the Offence Act. Defendants who are successful on a summary conviction appeal are not generally entitled to costs (R. v. C.A.M., [1996] 1 S.C.R. 500). The general rule may be displaced where the prosecution giving rise to the appeal or the appeal itself is frivolous, pursued for an oblique motive, or advanced as a test case (R. v. King (1986), 26 C.C.C. (3d) 349 (B.C.C.A.)). If anything, awarding costs in favour of the Crown in criminal cases, whether at trial or on appeal, is even less common. That is so for the reasons explained by T.C. Smith P.C.J. in R. v. Schaff, 2003 BCPC 244, at paras. 22 to 25. [15] Given the limited discretion to award costs in criminal proceedings, it is necessary to plot this proceeding on the continuum that has, at one extreme, a criminal proceeding under the Criminal Code and, at the other extreme, a civil dispute between private parties. [124] He concluded that the case before him more closely resembled a civil proceeding, explaining: [18] While most proceedings can be characterized as clearly criminal or clearly civil in nature others, such as the matter at hand, do not fall neatly into one or the other category. On balance, however, I find that proceedings under s. 49 of the Community Charter more closely resemble a civil proceeding than a criminal one. I reach that conclusion for several

related reasons. First, the respondents in such proceedings are not at risk of a fine or imprisonment. They are not at risk of any penalty, as that concept is generally understood. Second, the purpose of the section is not punishment but rather public safety. It is a preventative measure intended to minimize future harm (see generally New Westminster (City) v. Ash, 2006 BCPC 635, and R. v. Kucera, 2001 BCPC 360). Third, and consistent with the first two reasons, the standard of proof upon which the issues is to be decided, is the civil standard (R. v. Dempster (1985), 68 BCAC 151 at para. 12). As against the foregoing, the fact that it is the state, in the guise of a local government, seeking to deprive a citizen of property without compensation, is a feature that is more akin to a quasi-criminal proceeding than a purely civil matter. [19] In view of this characterization of the proceeding, and the broad discretion conferred by s. 112, the rule that costs follow the event may not apply as axiomatically as it does in purely civil proceedings. It seems to me, however, that it will be the usual result. [125] At para. 22, Barrow J. concluded that success was divided, although the respondent was more successful than the appellant, and that he should award costs at two-thirds of what would otherwise be appropriate. He then considered the quantum of costs: [23] The next issue is the

measure of costs. The appellant argues that the measure of costs should bear some relation to what a fine might have been had this been a prosecution under the respondent's animal control bylaw. I am unable to agree. If that submission is based on the incorporation of s. 79(3) into s. 112, I do not read the section that way. Section 79(3) does not address the measure of costs, but rather how they can be collected if ordered. I see no reason to do otherwise than apply the tariff in the Supreme Court Civil Rules. Although that will usually be the proper approach, in this case it is rendered the more so because until the hearing, both parties proceeded on the basis that the Small Claims Act applied, and both sought costs under the Civil Rules. In short, they proceeded believing that their jeopardy extended to costs as provided for under the Civil Rules. [126] The third case is R. v. Morshedian and Janani, 2016 BCPC 80, in which the trial judge had found the defendants guilty of eight of ten counts in an information alleging various breaches of bylaws of the District of West Vancouver. The breaches included bringing in and moving about significant amounts of soil on a residential property, and the subsequent washing of some of the soils into a nearby creek bed. One of the terms of sentence sought by the district was an order that the defendants pay the costs of the prosecution

pursuant to s. 263(3) of the Community Charter. Section 263(3) states that: In a prosecution for an offence against a municipal bylaw, the justice or court may impose all or part of the penalties applicable in relation to the offence, together with the costs of prosecution. [127] As can be seen, the words of this provision that deal with costs are virtually identical to s. 416(2) of the LGA at the time of this trial. [128] Provincial Court Judge Dyer discussed the submission of the prosecution in Morshedian: [61] Ms. Dubinsky noted there had been no judicial consideration of this or a similar provision anywhere in Canada. She said similar language to that in s. 263(3) of the Community Charter could be found, as well, in the Vancouver Charter and the Local Government Act. Thus, she had no precedent to offer as to how a court might go about making the award she requested, as it has never hitherto been done anywhere. Thus, she could not submit how, for example, other courts in other provinces had handled this request that she makes in the case at bar. [129] After noting certain other provisions of the Offence Act and the Community Charter, which did not apply in the case before him (and are not relevant to the present case), Dyer P.C.J. concluded: [67] Clearly had our Provincial Legislature intended to deal with this matter, something, I suppose, might have been set out in

Regulation 227/90 referred to above, which expressly deals with prosecution costs. One example might be to incorporate by reference certain Supreme Court of British Columbia tariffs of daily costs. This has not been done. [68] Ms. Dubinsky invites me to use a similar methodology as per s. 81 of the Offence Act and, by analogy, somehow set the costs in this way. [69] I decline to do so. Section 81, as I have said, deals with the costs of investigation into the offence, not the costs of its prosecution, very substantially, I should think, being lawyers' fees and related disbursements. No evidence has been placed before me as to what these costs might be. This claim fails on that point alone. [70] Our Legislature's intent could easily be made clear with a provision in Regulation 227/90 on point, referring to s. 263(3) of the Community Charter and setting out a simple schedule of "costs of prosecution", or, I suppose, the Act itself in a further provision within Division 2 could spell out just what these costs are. None of this has been done. [71] Assuming without finding that this is the state of affairs elsewhere, I am not at all surprised that no Canadian judge has ventured into these rather murky waters with a decision on point awarding costs. [72] I decline to venture beyond what I have said above and award no costs for the reasons above stated. [130] The defendants appealed

Dyer P.C.J.'s decision. The appeal was dismissed in District of West Vancouver v. Morshedian, 2017 BCSC 408. No reference was made on appeal to the costs issue. [131] I asked the parties whether these three judgments had been put before the trial judge in this matter. They advised that: a) The Schaff decision was not before the trial judge. b) With respect to the Smith case, Barrow J.'s decision on the appeal (indexed at 2013 BCSC 228) was before the trial judge. There was some mention of the costs judgment in Smith in Mr. Sisett's initial submissions on February 21, 2023. Counsel for the RDCO (who also acted for the RDCO in the Smith case) argued that nothing came out of that case that was significant to the costs issue in the present case. It does not appear that the trial judge was ever provided with the citation for or a copy of the costs judgment. c) With respect to Morshedian, the RDCO referenced and relied on Dyer P.C.J.'s application of the sentencing principles under ss. 718 and 718.1 of the Criminal Code in a regulatory context, but did not refer to the portions of his ruling in which the application for costs of the prosecution was dismissed. [132] As noted above, the parties provided me with written submissions with respect to these three cases. Mr. Sisett argued that an order for costs on top of fines and other financial consequences can give rise to a formidable

expense burden, and emphasized the importance of considering the effect of an order for costs upon the parties. [133] The RDCO in its written submission distinguished each of the three cases. It argued that: a) Schaff turned primarily on the interpretation of s. 89 of the Offence Act, a provision not relied on in the present case and that in any event has since been amended. The RDCO notes that the prosecution in Schaff had expressly not sought costs under s. 416(2) of the LGA relied on in this case. b) Smith was not a prosecution under the Offence Act, but rather was an appeal from an application for destruction of a dog under s. 49(10) of the Community Charter--such applications are considered by the court to be civil in nature. The RDCO says that costs of the prosecution were not sought at the trial level in Smith, while the judgment referenced above dealt with and awarded costs in respect of the appeal. Given that the appeal was dealt with as a civil matter, the judgment is of no assistance in interpreting s. 416(2) of the LGA. c) With respect to Morshedian, the RDCO said: to the extent this decision under the Community Charter may apply to cases under the [LGA] [it] is wrongly decided and inapplicable to the case at bar with respect to costs of the prosecution. In effect, it is submitted, Judge Dyer declines to allow prosecution costs which are allowable under the

Community Charter (the [LGA] is the governing legislation in the case at bar), because the legislative scheme does not allow for a readily apparent calculable method of determining those costs, such as a tariff. However, it is submitted that this is not a proper reason for declining to enforce a provincial statute. Standard of Review [134] Sections 101-102 of the Offence Act permit a defendant to appeal to the Supreme Court from a sentence imposed by the Provincial Court in a prosecution governed by the Offence Act. Section 109 provides that, in respect of any such appeal, ss. 683 to 689 (except s. 686(5)) of the Criminal Code apply. Of those, s. 687(1) is of note: Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive, (a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or (b) dismiss the appeal. [135] The standard of review applicable in an appeal governed by s. 687(1) of the Criminal Code was recently discussed by Justice Riley in R. v. Chow, 2024 BCSC 576: [29] A sentencing judge has a broad discretion to determine a fit and proper sentence based on the judge's assessment of the facts of the case and weighing of the relevant

sentencing objectives. As stated by Justice Wagner, as he then was, in R. v. Lacasse, 2015 SCC 64 at para. 39, "appellate courts may not intervene lightly, as trial judges have a broad discretion to impose the sentence that they consider appropriate within the limits established by law". [30] The appeal court can only intervene where the sentencing judge commits an error in principle, fails to consider or overemphasizes a relevant factor, or where the sentence is demonstrably unfit: R. v. M.(C.A.), [1996] 1 S.C.R. 500 at para. 90. [31] Even where the sentencing judge commits a reviewable error, appellate intervention is only justified where the error materially impacted on the resulting sentence: Lacasse at paras. 11, 45-46; R. v. Agin, 2018 BCCA 133 at para.

56. Where the appeal court finds that an error has occurred and "the sentence would have been different absent the error", the court must then "assess the fitness of the sentence by conducting its own sentencing analysis". If the sentence is found to be unfit, the court may vary it to impose a sentence that is fit: Agin at para. 56. [32] Quite apart from all of this, even where there is no reviewable error in the sentencing judge's analysis, the appeal court may revisit the sentence where it is "demonstrably unfit": M.(C.A.) at para. 90; Lacasse at para. 52; Agin at para.

57. A "demonstrably unfit" sentence is one that is "clearly excessive or inadequate", or represents a "substantial and marked departure" from the type of sentence that is customarily imposed for similar offenders committing similar offences: Lacasse at para. 52; M.(C.A.) at para. 92. [136] With respect to the costs order, the applicable standard of review was described in Peace River Partnership: [128] Costs awards are discretionary, and thus also subject to considerable deference. Appellate interference will only be justified where a judge makes a misdirection of law, an error in principle, a palpable and overriding error of fact, or, otherwise, the award is so clearly wrong as to amount to an injustice: Gichuru v. Purewal, 2021 BCCA 91 at paras. 13-14; Hartshorne v. Hartshorne, 2011 BCCA 29 at para.

23. Analysis [137] Before I begin my analysis, I note that this appeal proceeded without a transcript of the first three days of trial. Of course, all that is required for a sentence appeal under R. 6(7)(b) of the Criminal Rules of the Supreme Court of British Columbia, SI/97-140, is a transcript of proceedings at the sentencing hearing, which was before me. Both parties assured me that the transcripts in the record provided all of the evidentiary foundation required for this appeal. That said, there were some matters on which the parties did not agree--such as whether the trial judge prevented Mr. Sisett from leading evidence as to Charlie's gentle disposition. It is my view, having considered the issues, that the lack of this transcript does not impact on my ability to decide the issues on appeal. [138] I begin by dealing with Mr. Sisett's concerns about what he sees as a "declaratory sentence" that Charlie is a dangerous dog. It is my view, on a fair reading of the judgments given by the trial judge, that he did not consider any statements he may have made about Charlie to be a part of his sentence. Rather, he considered himself to be making the findings of fact that were necessary in order to dispose of the issues placed before him by the information and by the submissions made by the parties. [139] It is clear to me that Mr. Sisett does not accept that Charlie is a

dangerous dog. It may well be that, other than the two incidents involving Spike and Nahla, Charlie has shown no signs of being dangerous. That could be because the Sisetts have ensured he has had no further opportunities to interact with small dogs. The Spike and Nahla incidents did occur and they cannot be ignored. [140] I appreciate that Mr. Sisett has bona fide concerns about the Bylaw. It provides a one-size-fits-all solution for any dog declared dangerous. It gives the discretion to declare a dog dangerous to an animal control officer, with no internal mechanism for review of such a declaration on the merits. Mr. Sisett clearly feels that the restrictions the Bylaw provides for a dog declared "aggressive" (that the dog be kept within a fenced yard) would be more appropriate for Charlie. While judicial review of the dangerous dog declaration may notionally be available, on a judicial review, the underlying decision will generally be considered on a reasonableness standard of review. In Charlie's circumstances, a judge might well find that declaring Charlie to be a dangerous dog was within the range of reasonable outcomes. [141] I have quoted at length from the Santics judgment. It sets out the approach that would be adopted were there to be, at some point in the future, an application for Charlie to be destroyed. It is clear from reading the paragraphs I have quoted that a

Provincial Court judge dealing with the application would be focused on questions such as whether the dog in question is likely in the future to kill or injure. That determination will be based on a substantive consideration of what has happened in the past. There is no reference to a three-strike process. It seems clear that a judge hearing such an application will be much more concerned with evidence as to actual events than with parsing through judgments to try to discern between mere findings of fact and a "declaratory sentence" (to use Mr. Sisett's language). [142] In this case, the findings made by the trial judge are just that--findings made in the course of coming to a decision as to whether Mr. Sisett is to be convicted on any of the charges that were laid and, upon conviction, as to what sentence should be imposed. There is simply no basis for an appellate court to grant relief based upon those statements. An appellate court hears appeals from orders, not from comments in reasons for judgment. [143] I turn now to the specific elements of the sentence that was imposed. As noted, the standard of review is whether the sentencing judge has committed an error in principle, erred in their consideration of relevant factors, or whether the sentence is demonstrably unfit: Chow at para.

30. Fines for Counts 2, 4, 6 and 7 [144] With respect to the fines that were imposed, Mr. Sisett argued that the trial judge should have limited the fines imposed to the amounts set out on page 18 of the Bylaw. The amounts on that page are clearly established for use where the RDCO elects to proceed by means of a ticket, as it did in respect of the Spike incident. With respect to the Nahla incident, the RDCO elected to proceed by way of a long form information. [145] Section 68 of the Bylaw clearly provides a maximum fine of $2,000 for "each offence" under the Bylaw. At para. 16 of the No Evidence Motion Reasons, the trial judge recorded an understanding on Mr. Sisett's part that a proceeding on a "long form" was different and gave rise to different remedies: when the prosecution made a brief opening, Mr. Sisett stated his surprise in response. He said, and I quote, "I am here expecting that he is proceeding on long form to get costs and damages payable to the parties involved in the allegation, and now he tells us he's out after forfeiture of my dog. [146] Section 264 of the Community Charter (made applicable by s. 414(1) of the LGA) provides that a bylaw enforcement officer "may" choose to proceed by way of ticketing. It seems clear from this that the use of a ticketing procedure is intended as an efficient alternative to be used in appropriate cases, at the discretion of the

bylaw enforcement officer. The fines applicable where the matter is dealt with by way of a ticket are less than the maximum fines available if it is dealt with by way of an information. That does not in any way affect the court's ability to impose a fine up to the maximum amount where a decision is made to proceed by way of an information. Where the case proceeds by way of an information, as confirmed in s. 83 of the Offence Act, the appropriate fine is within the discretion of the presiding judge, subject, of course, to the maximum provided by the Bylaw. [147] The trial judge gave detailed reasons for his decision on the amount of the fines. In my view, the trial judge correctly referenced the sentencing principles in ss. 718, 718.1, and 718.2 of the Criminal Code. He carefully and thoughtfully considered the need for denunciation and specific deterrence in the circumstances of this case. He concluded that Mr. Sisett's intentional refusal to follow a law he disagrees with demonstrates a need for specific deterrence, and is not (as submitted by Mr. Sisett) a mitigating factor. [148] I am not persuaded that there is any error in the conclusions of the trial judge with respect to the fines imposed on each of the four counts for which he entered convictions. Payment to Mr. Dorosh [149] Mr. Sisett argued that it was not open to the trial judge to conclude that the injuries to Nahla

were caused by his failure to keep Charlie in an enclosure or to post a sign; rather, he argues they were caused by the Doroshes allowing Nahla to be unlawfully at large and to trespass on the Sisetts' property. [150] Section 417(1) of the LGA provides a statutory restitutionary remedy. It permits a trial judge, in addition to any fines, to order a person found to have violated a bylaw to: take any action the court considers appropriate to remedy the harm that resulted from the commission of the offence. [Emphasis added.] [151] The words "that resulted from" require the court to consider the question of causation. In my view, causation for purposes of this remedy is appropriately determined by the principles that have been developed in tort law, including in such leading cases as Athey v. Leonati, [1996] 3 S.C.R. 458, 1996 CanLII 183. In Athey at para. 14, the Court concluded that the general, but not conclusive, test for causation is the "but for" test, which requires the plaintiff to show that the injury would not have occurred but for the defendant's conduct in issue. Thus: [17] It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant's negligence was the sole cause of the injury. There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring. To borrow an example from Professor

Fleming (The Law of Torts (8th ed. 1992) at p. 193), a "fire ignited in a wastepaper basket is . . . caused not only by the dropping of a lighted match, but also by the presence of combustible material and oxygen, a failure of the cleaner to empty the basket and so forth". As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury. There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by their negligence. [Emphasis in original.] [152] In my view, the conclusion of the trial judge that the failure to build and keep Charlie within an enclosure as prescribed by the Schedule C of the Bylaw was "related directly" to Nahla being injured is an implicit reference to the "but for" test. While there may well have been other contributing causes, it is appropriate to say that but for this breach of the Bylaw, Nahla would not have been injured. [153] I would agree that there is some degree of speculation involved in the conclusion that Nahla would not have been injured but for the failure to post the required sign. This is particularly so given that entering the neighbour's yard was something that Nahla did while off-leash and unsupervised. However, my conclusion with respect to the failure to have

Charlie within an enclosure renders that speculation irrelevant. [154] Mr. Sisett suggests that the $1,000 amount awarded to Mr. Dorosh may include some amount for Ms. Dorosh being injured when she was bitten by Nahla. As I read the submissions and the evidence, the amount the RDCO sought was a partial contribution to the veterinary bills incurred by the Dorosh family. The part of the Order that deals with this issue makes no mention of Ms. Dorosh. That said, the trial judge did refer at paras. 7, 9, and 17 of the Sentencing Reasons to the injuries to both Ms. Dorosh and Nahla. As a result, it is possible that the trial judge considered both injuries when determining the $1,000 award. However, in my view, even if that was the case, one could say that the injuries to Ms. Dorosh would not have happened "but for" the failure to keep Charlie in the required enclosure and to post the required sign. As well, the $1,000 amount was appropriate in light of the veterinary bills that were incurred. [155] Mr. Sisett also argued that the evidence of injury to Nahla was tendered at trial primarily in respect of the counts that were dismissed, and should not be considered in respect of sentencing on the counts for which Mr. Sisett was convicted. I do not see any merit in this submission. It is my view that the evidence of injury to Nahla that was tendered at trial was available to be used in

respect of any of the counts. While it may be Mr. Sisett's view that the evidence was primarily tendered in respect of counts 1 and 5, it was clearly relevant as well to the question of whether a restitution payment should be ordered. [156] In my view, there is no basis to interfere with the trial judge's award of $1,000 to Mr. Dorosh, as Nahla's owner, "to remedy the harm for injuries and veterinary costs". Prohibition Orders [157] The orders made in para. 3 of the Order are attributed to s. 417(1)(c) of the LGA. That provision gives the Provincial Court jurisdiction to make an order in respect of a person convicted of an offence "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" (emphasis added). [158] The word "prohibit" in its various forms has a well-known meaning in the context of injunction-type orders. As explained by Justice Gillese in 1711811 Ontario Ltd. (AdLine) v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, at para. 57: A mandatory injunction is one that requires the defendant to act positively. It may require the defendant to take certain steps to repair the situation consistent with the plaintiff's rights, or it may require the defendant to carry out an unperformed duty to act in the future: see Sharpe, at para. 1.10. Mandatory injunctions are rarely

ordered and must be contrasted with the usual type of injunctive relief, which prohibits certain specified acts. [159] Unlike the Supreme Court of British Columbia, which is a court of inherent jurisdiction, the Provincial Court's jurisdiction is statutory. The applicable statute in this case grants the Provincial Court jurisdiction to make orders that prohibit a person from doing specified things. In my view, if the intention had been to grant jurisdiction to issue what are, in effect, mandatory injunctions, the statute would have said so clearly. [160] All of that said, there are many ways in which a prohibitory order could have been crafted that would have achieved the same goals. Mr. Sisett, for example, could have been prohibited from having Charlie at his home unless specific requirements were met, with such order to take effect after a set time (such as the 15- or 45-day periods referenced in para. 3 of the Order). [161] In this case, Mr. Sisett complied with all of the so-called "Prohibition Orders" set out in para. 3 of the Order. More importantly, all of the things that Mr. Sisett did in compliance with the order are things that he was required at law to do. Had he not done them, he would most likely have been charged with further breaches of the Bylaw and potentially faced even larger fines. [162] In all of the circumstances, I consider it appropriate to conclude

that the appeal from para. 3 of the Order is moot. Charter Application - Wrongful Seizure [163] Mr. Sisett's Charter application had two parts: the first being damages alleged to arise from the wrongful seizure of Charlie; and the second being the costs of defending the counts that were dismissed. I will deal first with the claim of damages for wrongful seizure. The trial judge dealt with this in the Sentencing Reasons as follows: [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. [164] Issues of notice can in appropriate cases be addressed through adjournment and terms. A decision whether to adjourn is highly discretionary. In the circumstances, this decision would have given rise to questions not only of whether an adjournment was just but also of whether the issues Mr. Sisett wanted to raise were appropriate to be dealt with as part of the existing proceeding. [165] I note that in this case, the search warrant was issued, and presumably executed upon, some ten days before the summons was issued. It is not clear how any deficiency in the

various counts of the summons could undercut the validity of the search warrant. The trial judge was clearly of the view that the search warrant had not been the subject of review in the proceeding before him, and that there was not the sort of evidentiary record that would be needed to determine the appropriateness of the warrant. He also noted that there were significant problems with notice. Thus, he concluded that it was simply not appropriate to engage those issues in the proceeding that was under way. [166] In my view, that discretionary conclusion of the trial judge is entirely appropriate in the circumstances. To expand the proceedings at that late date to include consideration of a search warrant and ITO that were not previously the subject of inquiry, without prior notice, was not warranted. Costs Issues [167] I turn now to consideration of the various claims for costs. [168] Mr. Sisett sought an order for costs as a Charter remedy arising from the fact that three of the counts in the information were dismissed. The Sentencing Reasons seem to treat Mr. Sisett's Charter claims as being primarily with respect to expenses incurred further to the seizure of Charlie. However, as I read the transcript of Mr. Sisett's oral submissions, it appears that he was asking for reimbursement of those expenses and costs--his specific words were "I would ask that either Your Honour

make an assessment of a cost award or that that go over for taxation". [169] Although Mr. Sisett advanced his claim based on the Charter, it appears from what is said in 974649 Ontario Inc. that, at least in the circumstances of this case, an award in costs under the Charter would differ little from an award of costs pursuant to the court's general jurisdiction to award costs in appropriate criminal and quasi-criminal cases. In a case like the present, the test is whether the conduct of the prosecution represents a marked and unacceptable departure from the reasonable standards expected of the profession. As explained in 974649 Ontario Inc. at para. 87, the prosecution is not held to a standard of perfection. [170] The comments of the trial judge with respect to the lack of evidentiary foundation for a Charter claim in respect of the search warrant, and the lack of notice under the Constitutional Question Act, have much less force with respect to a claim for costs of the trial. These costs are (a) based on conduct at the trial itself and (b) available at common law and not just pursuant to the Charter. [171] That said, while the trial judge does not appear to have dealt with this issue expressly, it seems clear from a full review of the three judgments given by the trial judge that nothing in the litigation conduct of the RDCO with respect to the information would meet the

"marked and unacceptable departure" test. It is thus my view that Mr. Sisett has no independent right to claim costs from the RDCO, whether under the Charter or at common law, based on this test. [172] I turn now to the award of costs that the trial judge made pursuant to s. 416(2) of the LGA in respect of "costs of the prosecution". There is little authority on the proper interpretation of these words--either as they appear in the LGA or in comparable provisions in the Community Charter. [173] The three cases upon which the parties made submissions are discussed above. I agree with the RDCO that Schaff is of little assistance because the regional district in that case expressly disclaimed any reliance on the provision that was at the time of trial s. 416(2). I also agree that Smith is of little assistance given Barrow J.'s conclusion that the proceeding before him was essentially civil in nature. [174] The question then is whether I should follow the judgment in Morshedian, which effectively applied the traditional approach to costs in criminal and regulatory prosecutions to a situation in which the statute expressly provides for the prosecuting municipality or regional district to recover "costs of the prosecution". [175] In my view, there is merit to the RDCO's submission that the specific wording of the LGA (as well as similar provisions in the Community Charter) was

intended to reflect the fact that prosecutions for municipal or district bylaws are funded by the responsible municipality or regional district, who are not provided with the services of Crown counsel. I am thus of the view that the provision does provide a discretion to award costs that is not subject to the usual rule in criminal and quasi-criminal cases limiting awards of costs to exceptional circumstances. [176] In my view, it would be inappropriate to apply the tariff under the Supreme Court Civil Rules to awards for costs of such prosecutions. Nothing in the Offence Act or in the Supreme Court Civil Rules suggests that that tariff should be applied to such prosecutions. Rather, it is my view that the word "costs" should carry the meaning suggested by Huddart J. in Port McNeill at para. 29, quoting from Lord Devlin: namely, "all expenses properly incurred in the defence or prosecution of a complaint, whether or not taxable under a particular tariff." [177] As is clear from the authorities, an award of costs is not made at large. Again, using the words of Huddart J., a judge determining costs would be required to exercise their discretion judicially in accordance with key principles as to costs developed in the authorities: Port McNeill at para. 30. [178] Some guidance may be drawn from the analysis in Peace River Partnership. It is important to note, however, that Peace

River Partnership reflects its context of a contractual provision for costs in a multi-million-dollar contract amongst sophisticated commercial entities, who have voluntarily adopted a contractual regime that contemplates full indemnity for the successful party's legal costs. Those who are compelled to respond to a summons under the Offence Act are not voluntarily buying into any such regime and are more likely to be unsophisticated. The prospect of a lack of proportionality between the costs of participating in a court proceeding and the amounts properly in issue is also likely to be a significant concern. A consideration of proportionality must keep in mind the potential chilling impact of a substantial award of costs on the ability of a citizen to advance meritorious defences to bylaw prosecutions. [179] Despite its different context, Peace River Partnership conveniently gathers a number of key costs principles that should be considered in any award for costs under s. 416(2) of the LGA. It is also helpful because those principles are attributable to the common law, rather than tied to the language of any tariff. They include (para. 149): a) The proportionality of the expense in relation to the amounts in issue; b) The degree of success achieved by each party; and c) Any litigation misconduct by either party. [180] As in Peace River Partnership, it would be appropriate for

the court to consider any admissible offer to settle--this would include a "Calderbank" letter, which is said to be without prejudice except as to costs. These letters are named after the legal principles set out in Calderbank v. Calderbank, [1975] 3 All E.R. 333 (C.A.), and, because of the terms on which the letters are sent, may be referenced at a hearing as to costs notwithstanding the settlement privilege that would otherwise apply. [181] To the extent a prosecuting regional district claims travel costs for counsel from out-of-town, it would be appropriate to consider the reasonableness of such expenses and of retaining out-of-town counsel--there are several judgments with respect to Item 48 of the Tariff in Appendix B of the Supreme Court Civil Rules that discuss those principles. [182] In my view, all of these principles are fundamental to any costs regime, and while there may not have been authorities applying them in the context of s. 416(2) of the LGA, they are essential considerations in the making of an order for costs. [183] I repeat here the Sentencing Reasons of the trial judge with respect to his award for 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. [184] With respect to the last sentence, the transcript of the hearing indicates that Mr. Sisett did make arguments to the contrary--albeit without reference to authority and not at great length. He argued that the costs were unsupported, that the overall claim was oppressive, and that the claim failed to recognize Mr. Sisett's success on three of the seven charges. As can be seen, the trial judge failed to recognize these submissions and thus did not deal with them in the Sentencing Reasons. [185] In my view, the trial judge erred in this case in failing to consider the important costs principles raised by these submissions. This was an error in principle and justifies appellate intervention notwithstanding the discretionary nature of a costs order. [186] The award of costs of the trial judge exceeds the total of all of the other financial awards in the judgment. That in and of itself raises concerns of

proportionality. While I would by no means suggest that an award of costs is limited to the amount of the other financial awards, the magnitude of the amount claimed for costs in proportion to the other financial awards should have called for careful consideration of the claim. [187] I agree with Mr. Sisett that it is a relevant consideration that he was successful on three of the seven charges. I note as well that three of the four counts on which he was convicted were essentially admitted--although Mr. Sisett did contest the underlying question of the appropriateness of Charlie having been declared a dangerous dog. [188] In my view, the fact of Mr. Sisett's success on three of the seven counts, which took up a substantial portion of trial time and as to which he was fully successful in the first of three judgments (i.e., the No Evidence Motion Reasons), should have been recognized and accounted for by the trial judge in the assessment of costs. [189] As I read the three judgments, the trial judge did not consider any party to have been guilty of litigation misconduct. Nor was there any properly admissible Calderbank-type settlement proposal that could impact the assessment of costs. [190] In my view, the trial judge erred in principle through a failure to consider questions of proportionality and degree of success. As a result, the award of costs must be set aside. [191] The

next question is whether to assess costs as part of this judgment or to refer the matter back to the trial judge. Given the amount of the costs award, the costs already incurred, and the costs that would be incurred by further proceedings in the Provincial Court, I conclude that it would not be appropriate to refer this matter back to the trial judge. In my view, it is appropriate for an appellate court in circumstances like this to adjust the award to reflect these two factors (proportionality and degree of success). [192] The total financial award (apart from costs) was $5,000 ($4,000 in fines and $1,000 in restitutionary payments). In light of that, and of Mr. Sisett's substantial success on some of the issues at trial, it is my view that it would be appropriate to reduce the award in respect of costs to $2,500. Conclusion [193] I would allow the appeal in part, by reducing the amount provided in para. 1 of the Order for costs of prosecution from $7,000 to $2,500. The appeal is otherwise dismissed. [194] I assume that costs of this appeal would be governed by s. 112 of the Offence Act. My preliminary view is that success has been mixed, and that the parties should bear their own costs of the appeal. If either party wishes to advance a claim for costs, they may do so by submissions provided to me by way of Supreme Court Scheduling within 60 days of today's judgment. The other party would have 21 days to respond to the submission. If neither party files a submission, then the parties will each bear their own costs. "Veenstra J."