Bylaw Officer playing "Rock, Paper, Scissors".

Kinder, Safer and Effective BC Law Enforcement

Updating Enforcement

A rethinking of law enforcement has resulted from the use of force protests in the United States combined with concerns for community safety during the recent BC election.  Fortunately, the Province can modernize and update law enforcement without creating more bureaucracy and with minimal cost to the taxpayer.  This requires an approach emphasizing regulatory enforcement that is kinder, safer and effectively gets results.

Law Enforcement Options

The law covers a wide range of offences.  There are minor regulatory offences like parking tickets, at-large dogs or smoking in parks.  Criminal offences, like violent crimes under Canada’s Criminal Code need to be enforced by municipal police or the RCMP.  In the middle are regulatory offences which are routinely enforced by bylaw enforcement officers (”BEOs”) employed by local governments throughout British Columbia.

The Province has recognized the experience of BEOs in dealing with complex and diverse laws.  During the COVID-19 pandemic, the Province expanded BEO authority through Ministerial Orders related to health and consumer protection.

Regulatory law includes enactments, orders, bylaws, and resolutions from local governments, health authorities, provincial ministries and other public bodies.  Breaches of regulatory laws are offences which may escalate to criminal offences.  These offences can be committed by individuals, property owners, or businesses.

Regulatory Enforcement

BEOs can reduce or prevent crime using regulatory enforcement tools.  Regulatory tools are administrative, civil or even quasi-criminal.  They are targeted towards compliance rather than the criminal process extremes of either heavy-handed jail sentences or weak revolving door results.  Regulatory enforcement is also kinder and safer as it mostly does not require the use of force.  Instead, compliance is obtained through enforceable orders.  Finally, regulatory enforcement in local government has broad civilian oversight with 187 elected local government Councils or Boards throughout BC.

Regulatory enforcement allows the police to focus on serious crimes while BEOs target the “B” team.  The extra support provided to police with more “boots on the ground” would reduce the strain on already stressed police departments and other public authorities.  More importantly, the annual cost of a BEO is typically half that of a fully-trained police officer – $90,000 vs. $185,000.

A Case in Point

The Willow Inn in Prince George, BC

The Willow Inn, Prince George, BC. | Citizen photo by Brent Braaten

The City of Prince George used bylaw regulatory enforcement in conjunction with the RCMP to effectively reduce crime. The City suspended business licenses of multiple motels, inns, and rooming houses whose poor management and clientele increased crime. As one RCMP officer noted, “these [motels] were one-stop shopping for all your criminal needs”. While police and other public authorities had many concerns with these motels, they worked in isolated “silos” with limited compliance tools.

BEOs at the City coordinated a team approach using “administrative” regulatory powers to suspend the business license, effectively shutting down the motels.  The City’s regulatory authority from a municipal Council was faster, cheaper and a more effective result than the Courts.

Provincial Action

To enhance community safety, BEOs should obtain clear authority and expanded jurisdiction.  For instance, the Provincial Court held that BEOs were “peace officers” in decisions like Turkko and Woodward.  However, provincial legislators have not yet codified this with amended legislation.  This leads to difficulty in compliance if and when BEOs are not taken seriously.

The Province can update and modernize law enforcement options by:

  • Amending the Police Act to include bylaw officers as peace officers;
  • Expanding BEO authority to other legislation such as the Safe Streets Act, the Trespass Act, Motor Vehicle Act, the Provincial Offence Act and other statutes that protect the public or their property;
  • Encourage local governments to allocate targeted funding to police/RCMP detachments that work with bylaw departments on regulatory prosecutions and crime reduction strategies; and
  • Create a Community Safety Officer statute that qualifies trained BEOs to enhance community safety and livability and, align BC with other provinces who provide a regulatory middle ground in law enforcement.

Regulatory enforcement encourages cooperation, coordination and collaboration among law enforcement agencies.  BEOs provide a kinder, safer but effective law enforcement option.  Provincial leaders should recognize the use of force protests and concerns for community safety for what they are:  an opportunity to modernize and update law enforcement in BC.

About the Authors

Troy DeSouza, Managing Partner at Dominion GovLaw LLPTroy J. DeSouza is a lawyer at Dominion GovLaw LLP and past Member of the Military Police Complaints Commission (“MPCC”), a federal civilian tribunal reviewing military police complaints.Inder Litt, President of LIBOAInder Litt is President of the Licence Inspectors’ and Bylaw Officers’ Association of British Columbia (“LIBOA”).

Local Governments Bite Back!

The License Inspectors’ and Bylaw Officers’ Association of British Columbia (“LIBOA”) represented local government Animal Control Officers as an intervenor in Santics v. Cristofoli (the Animal Control Officer for the City of Vancouver) (“Santics”).

Legal counsel Troy DeSouza (representing LIBOA) and Robert LeBlanc (representing the City of Vancouver) represented local government perspectives at the appeal hearing. They were up against seven lawyers representing five parties with positions contrary to local governments.

Read the full text of the Santics decision here.

Summary of Decision

The key takeaways from the decision are:

  1. The test for whether a destruction order will be granted is whether the dog poses an “unacceptable risk to the public”;
  2. The Provincial Court has no jurisdiction to make conditional orders on a dangerous dog application; and
  3. Nothing in the decision takes away from the ability of ACOs to craft remedies by agreement with the owners of dangerous dogs.

Unacceptable Risk to the Public

Going forward, the overarching question on a destruction application 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 yes, the dog must be destroyed.

In making this determination, the judge will consider several factors, such as the circumstances of the attack, the dog’s past and present behaviour and temperament, and any extenuating circumstances that would make a future attack unlikely.

Use of Expert Evidence

Notably, the Court was silent on whether expert evidence is required in dangerous dog matters, although it was a significant issue in the appeal.

In our opinion, while expert evidence is not required, it is advisable in many dangerous dog cases to predict a dog’s future behaviour.  Any expert evidence adduced will form part of the body of evidence the court must consider.

No Conditional Orders, Agreements OK

The Court unanimously decided that the statutory regime “does not provide for conditional orders falling short of destruction”.  Judges may no longer make such orders.

However, the Court also preserved “the discretion of an animal control officer to craft particular remedies with the dog’s owner rather than applying for a destruction order”.  In our opinion, this includes consent orders.

In recognizing this discretion, the Court accepted LIBOA’s submission that an application for destruction is usually a last resort for an ACO only after other options have failed.

The full text of the decision and this article are available on our website.

The Bottom Line from Kuo to Santics

The Supreme Court decision in CRD v. Kuo opened the door to discretionary “conditional orders” by a Provincial Court Judge. With the consent of participating local governments, LIBOA provided evidence that prosecution costs in dangerous dog cases increased from an average of $7,400 per case before Kuo to $44,000 per case after Kuo.

The Court recognized that the pre-Kuo case law properly interpreted the legislative scheme as not allowing for conditional orders.

Following the release of the decision, LIBOA president, Inder Litt, stated:

“This is a solid victory for public safety, animal control officers, and our costs of enforcement!”

The legal victory was more personal for Troy DeSouza, counsel for LIBOA, who stated:

“For 11 years, I have been saying that the Supreme Court in Kuo got it wrong. I am grateful for local governments that the British Columbia Court of Appeal agrees.”

Special Thanks

Special thanks for the success of this appeal goes to the following people and organizations:

  • The executive and membership of LIBOA for taking and supporting such action;
  • Don Howieson and Robert LeBlanc at the City of Vancouver for supporting LIBOA’s application for intervenor status;
  • Bob Macquisten at Stewart McDannold Stuart for providing old case files;
  • And most importantly, the following local governments for their generous financial contribution to this appeal:
    • Regional District of Central Kootenay;
    • City of Campbell River;
    • Regional District of Central Okanagan;
    • Township of Esquimalt;
    • District of Kent;
    • District of Oak Bay; and
    • District of Mackenzie.

There is still an opportunity to help fund LIBOA’s outstanding legal costs. Cheques may be made payable to the “Licence Inspectors’ and Bylaw Officers’ Association” and sent to:

Inder Litt (LIBOA President)
c/o City of Abbotsford
32315 South Fraser Way
Abbotsford BC    V2T 1W7

Going Forward

While this is a solid victory for local governments, those who disagree with the decision will press the Province to change the law. The Court specifically stated that it is the prerogative of the Legislature, and not the courts, to decide the appropriate dangerous dog scheme.

Elected officials should be ready to weigh in to ensure that the protection of the public remains paramount.

Finally, if you need compliance and enforcement advice, particularly on public safety and dangerous dogs, call the experts at GovLaw!


Author: Lisa Guidi, Lawyer at Dominion GovLaw LLP

Abandoned house with graffiti

“If You Want Something Done Right, Do It Yourself” – A Plug for Remedial Action

In the local government world, this is not always possible or practical. However, with remedial action requirements, you can get it done yourself. And you can recover the cost of the work!

Every community, no matter how big or small, has one. A problem property. The neighbours complain about it being a nuisance. Building inspectors and bylaw officers have repeatedly raised safety concerns and non-compliance issues with the owners and occupants, but nothing has been done.

Using the remedial action requirement provisions under the Community Charter and the Local Government Act, local governments can require owners, occupiers, or lessees of a property to remedy specific nuisances or hazards. If the person subject to the requirement takes the required action by the deadline, great — problem solved! If not, the local government can go in and do the work themselves.

After the work has been completed, the cost of conducting the work can be recouped from the owner. Both the Community Charter and the Local Government Act allow fees imposed for work done or services provided in relation to land or improvements to be collected via the property tax rolls.

When using remedial action requirements, be careful and diligent. The subject of the requirement must fit within the statutory scheme. Further, one must follow the strict statutory procedural requirements. Notice must be given to all affected parties and the Board or Council must hold a hearing before declaring the subject a nuisance or a hazard and imposing a requirement. Once a requirement has been imposed, the affected parties must be allowed to request a reconsideration hearing.

This procedure is something local governments can do on their own — lawyers are not needed. It’s much more cost-effective than seeking an injunction and will free up bylaw staff and building inspectors to deal with other compliance issues.


Author: Jarrett Plonka, Lawyer at Dominion GovLaw LLP

Love Me “Tender”

The City of Toronto recently made the news, this time for all the wrong reasons.

A small park in Etobicoke had a “shortcut” with a slope where people had fallen. The city proposed installing a small flight of eight stairs to eliminate this risk. The City estimated these stairs would cost between $65,000 to $150,000, with construction requiring several months to complete.

A retired tradesman took matters into his own hands, collected donations from neighbours, and hired a homeless person to help him. After one day, he had installed the stairs for a total cost of $550.

For his trouble, this retired senior citizen risked legal action, and bylaw officers barricaded and dismantled the staircase on the grounds that it was unsafe.

To be fair to the City, there were safety issues: the stairs were uneven and not built on a foundation. However, even Toronto’s Mayor admitted that the City’s six-figure estimate for a properly-built staircase was “completely out of whack with reality” – not quite a ringing endorsement of the City’s process!

After a few days of bad press, three city workers built fully-compliant stairs for about $10,000. There was little explanation as to why the original estimate would have cost fifteen times more.

In another case, San Francisco made the news a few years ago for spending almost $700,000 US to build a wheelchair ramp at San Francisco City Hall. For that price, they could have bought a small house with money left over to furnish it! Astoundingly, the City considered the ramp a financial success as they originally budgeted $1.1 million to build it!

The year before that, San Francisco spent about $210,000 to move a bush. Ironically, the City’s motto is “gold in peace….”.

What’s going on here?

Although each case is unique and dependent on its own facts, one commonality is a broken tender process. Therefore, some solutions are to:

1. Get Comfortable with Outsourcing

There are always situations where it makes more sense to outsource projects, products or services. The private sector often offers services that are quicker and less costly.

2. Don’t Buy the Cadillac When the Chevy Will Do

Always ask: What does your department actually need? What requirements will meet those needs? Are all these requirements necessary or are they “extras”?

San Francisco’s $700,000 wheelchair ramp is a great example. One reason for the excess cost was the City hall preferred the wheelchair ramp to be “historically accurate”. This resulted in expenses such as $49,000 spent on “historically accurate brass handrails”, $48,000 spent on architectural historians, and significant design costs. For a wheelchair ramp!

This is not a criticism of preserving a City’s historic character or historic buildings, which are part of any city’s charm. However, this is an example where the City paid a far higher price because it prioritized what it wanted over what it needed.

3, Reconsider Your Tender Parameters

Before starting any tender process, think twice about the parameters for any valid bid. Are the requirements critical, or could they be flexible?

Remember, bid parameters can be set to “nudge” the result in a particular direction and this adds costs.

For example, imagine a local government soliciting bids for a new fleet of work trucks for its public works division. Bid parameters “requiring” trucks with a specific size and horsepower will result in a specific price range.

A small difference in horsepower or size may result in excluding models with a significantly lower price, even if those models would be able to do the job just as well. In other words, bid parameters may have been set to exclude many other options that might satisfy the local government’s actual needs for a lower cost.

Local governments are tasked with more responsibility and costs every year, without new funding or revenue tools. Thus, spend every dollar wisely with a smarter tendering process will help add to the bottom line.


Jarrett Plonka, Lawyer at Dominion GovLaw LLP

Fast and Furious: Evicting Tent Cities Quickly

GovLaw filed the Petition to remove the tent city encampment in the City of Duncan on April 10, 2017. On April 18, 2017, Mr. Justice Mackenzie granted the Order. For those keeping score, it took the Province of B.C. eight months to remove the tent city at the Victoria Courthouse in 2016. It took the City of Duncan eight days (yeah, we know – Duncan Rocks!).

The furious urgency of Duncan’s civil injunction was the critical ingredient to its success. In the previous Victoria Courthouse decision, Chief Justice Hinkson demurred that it took many months for the Province to proceed to court, so the court did not see a sense of urgency. The Province’s interim injunction was denied, and they were forced to proceed with a second application months later.

Urgency is everything. The longer the tents remain, the less urgent it becomes for the courts to grant the injunction. Also, tent encampments expand with delays. In Duncan, what started out as three tents on March 31st quadrupled to twelve tents by April 18th. While temporary shelter was available for persons at the encampment, such shelter may not be available the larger the encampment becomes. Thus, the Mayor, Council and staff in Duncan moved fast and furiously to proceed with civil injunctive proceedings.

The eight days it took from the start of proceedings to an Order is now one of the fastest tent city turnarounds in the Province. The protesters of course, disobeyed the Order and were forcibly removed the next morning. The lesson here is that when dealing with tent cities, local governments need to move quickly!


Author: Troy DeSouza, Lawyer at Dominion GovLaw LLP

We Have a Court Order but They’re Ignoring It! What Now?

It is a common misperception that legal action ends when the parties get their court order. Such orders may either by in the form of a consent order, or after a long and hard-fought legal action. In reality, obtaining a court order often is not the end of the matter.

Unsuccessful parties often fail to live up to the terms of the order against them. Worse, some choose to ignore the court’s order.

This can be a source of great frustration for successful parties. After going through all that effort to get an order, many become discouraged at the moment they need to press forward to “finish the job”.

Local governments are no stranger to this problem.

The reality of taking enforcement action is that the targets of enforcement action are often principled and unwilling to concede defeat. Further, they are often disproportionately self-represented, meaning they are far less likely to respect the court process or appreciate the significance of a court ordered injunction.

At the same time, local governments often continue to look to find a workable compromise after court in order to get compliance while limiting legal costs. However, legal costs should not be a concern.

Local governments can use the contempt application process to get compliance, on their terms, and with almost 100% legal cost recovery.

Langford v. Dos Reis 2016 BCCA

GovLaw recently concluded a contempt application very successfully in the decision Langford v. Dos Reis, with two sets of reasons at 2016 BCCA 201 and 2016 BCCA 460.

Dos Reis, the respondent built an accessory building without permits, and without the minimum setbacks from the lot line. In February 2015, the Court of Appeal reversed the Supreme Court judge’s decision, decided in favour of the City of Langford, and ordered the respondent to remove the accessory building within 60 days.

Despite the Court order, the respondent failed to comply and instead requested several extensions from Langford throughout 2015. During that time, the Respondent twice applied for Development Variance Permits to allow her building to remain as it was. After Langford denied the applications, the Respondent took no steps to comply with the Court Order.

By early 2016, faced with the respondent’s ongoing disregard for the Court’s order, Langford reapplied to Court. In May 2016 Justice Donald found the respondent in contempt, but adjourned the penalty hearing for a later date, but nothing changed by October 2016.

In GovLaw’s argument, we provided evidence showing that virtually no steps had been taken to bring the property into compliance. Justice Donald considered the respondent’s disregard for the Court order over a year and a half to be a significant, aggravating factor, and part of the respondent’s “unrepentant … anti-social behavior” and “disobedience and disdain for the processes of the Court”.

The respondent argued that she was a self-employed seamstress, could not afford to hire help, and was working to comply when she could find the time. Justice Donald did not accept this excuse, stating it was not acceptable for the respondent to treat this “as a slow do-it-yourself project”, rather than the serious issue it was. Justice Donald found the respondent’s attitude was “defiant”, and her attempts at compliance were “grudging, disobliging, tardy, and incomplete”.

Accordingly, Justice Donald ordered the respondent to comply, and to pay a fine of $7,500, each within 30 days, with further penalties if the respondent did not comply. He also ordered the respondent to pay the City of Langford “special costs” (i.e. actual legal fees) for the contempt proceedings. Special costs are generally awarded upon a declaration of contempt.

What is Contempt of Court?

Contempt is a fairly complex concept, involving both criminal and civil contempt.

This case involves civil contempt. To prove civil contempt, the accusing party must bring an application before the Court with evidence proving three elements beyond a reasonable doubt:

  1. There is a clear, unambiguous order stating what must or must not be done.
  2. The party alleged to be in breach of the order must have actual knowledge of the order.
  3. The party alleged to be in breach must have deliberately done (or failed to do) something which results in contravention of the Court’s order.

Contempt is considered an offense against the administration of justice, so a finding of contempt usually results in a fine. Nevertheless, it is also possible for jail time to be ordered in certain circumstances. These are in addition to, and not a substitute for, compliance with the Court order. If the non-compliance continues, the Court may order larger fines, or even jail time, until the non-compliance ends.

How Can Local Governments Use Contempt?

Local governments should view contempt as a final conclusion to get compliance from those stubborn respondents who remain non-compliant despite a court order.

Contempt is a last resort, not a first resort.

In order to bring an application for contempt, there first must be a court order that requires someone to do something or prohibits them from doing something.

Local governments usually obtain these kinds of orders when they negotiate a consent order, or after bringing civil enforcement proceedings. Contempt only becomes an option when non-compliance continues after a court order.

However, the rules governing contempt require strict compliance with a variety of legal, evidentiary, and procedural rules.

For this reason, we strongly recommend that local governments work closely with their legal counsel throughout the compliance process. This includes drafting the terms of an order sought, assembling evidence of non-compliance, and taking other related steps, to ensure that an application for contempt does not fail for technical reasons.

 Do We Have to Pursue Contempt Right Away?

No! In fact, it can be helpful if you don’t.

We understand that local governments are concerned with getting to compliance. Contempt is just one tool to get there. If a court order results in negotiations leading to compliance, then the Order has done its job.

Once the Court has made its order, there is no requirement to come to an alternative solution. Until the order is varied, it is effective and enforceable, even if the local government does not take steps to enforce it immediately. Supreme Court Orders do not expire with old age!

If negotiations do not succeed, local governments still have the option of pursuing contempt, just like our Langford case. Generally, the Court will appreciate the attempt to get to compliance without running back to Court and will not fault the local government if that becomes necessary later on.

Who Gets the Fine?

Unfortunately, local governments do not get the fines for contempt, even if they are the ones bringing the contempt application.

This is because the law considers contempt to be an offense against the administration of justice generally. Although fines may sometimes be awarded to charities, generally fines for contempt are payable to the Province, which funds the courts. This is what Justice Donald ordered, despite our comprehensive argument that Langford should recover these fines in its unique situation. In the future, the UBCM may want to consider proposing and lobbying for an amendment to the Community Charter to allow local governments to recover fines for contempt in enforcement actions.

Legal Cost Recovery and Contempt

There is a silver lining: even if local governments aren’t entitled to fines for successful contempt proceedings, they are ordinarily entitled to recover their actual legal fees from the party in contempt. This is a rare and powerful tool that should make contempt a very appealing option for local governments.

Ordinarily, the Rules limit parties to recovering only part of their legal fees. Recovering actual legal fees, or “special costs”, is restricted to extraordinary circumstances where the other party has misbehaved significantly.

Contempt proceedings are unique in this way: contempt involves the breach of a court order, which is almost always considered a significant misbehavior, so the default rule is that a party in contempt must also pay the “special costs” (actual legal fees) of the contempt proceedings.

Local governments should remember this rule.  We understand that by the time contempt proceedings become an option, local governments have spent significant time and money and may be reluctant to do more. However, local governments need to remember that once they get their court order, they are entitled to see it obeyed without further expense. If local governments are put to the trouble of making a contempt application, they can expect that the party in breach will ultimately be responsible for those legal costs.

Conclusion

Contempt is a very powerful tool for local governments seeking compliance with a court order. It is the ultimate “hammer.”


Author: Jarrett Plonka, Lawyer at Dominion GovLaw LLP

Judge signing a legal document

Zoning Bylaw with One Missing Word Upheld in Appeal Court

One missing word was all it took for The Honourable Mr. Justice Johnston in the Supreme Court of British Columbia to nullify a setback provision for accessory buildings under the City of Langford’s Zoning Bylaw. On appeal, a unanimous Court of Appeal reversed that decision.

Facts

The homeowner, Marlene Alina Lima Dos Reis (“Dos Reis”), built an accessory building 1.54 metres away from a fence which runs along the lot line of her property (see photo). The City’s Zoning Bylaw required a 6-metre setback for an exterior side lot line, but only a 1 metre setback for an interior side lot line. Unfortunately, the zoning provision in question referred to “exterior lot line” and not the defined “exterior side lot line”. Given the missing word “side”, Mr. Justice Johnston gave Dos Reis the benefit of the doubt and permitted the less restrictive 1 metre setback.

Law

On February 18, 2015, the B.C. Court of Appeal reinforced the established approach to the interpretation of municipal bylaws. The Honourable Mr. Justice Harris writing a concise and unanimous judgment upheld the 6-metre setback and ordered the accessory building to be removed.

The Court of Appeal held that the Trial Judge erred in applying a strict construction test from Montreal (City) v. Morgan (1920) that penalized the City for essentially omitting one word. The Court held:

[12] As the municipality accepts, the omission of the word “side” in the bylaw shows that the bylaw is inelegantly drafted. That may be so, but in my view, the judge’s interpretation defeats the purpose of the bylaw scheme to function as a comprehensive scheme of regulation. It creates a type of lot line that does not fall within what is intended to be an exhaustive list of definitions and therefore falls outside the regulatory scheme. By doing so, it produces an absurd result. …

“We have a better chance of finding the Ogopogo

than finding a municipality with error-free bylaws.”

Troy DeSouza, counsel for the City of Langford

Conclusion

This case demonstrates how courts grapple with drafting errors. The challenge for local government lawyers fixing mistakes after the fact, is easier said than done.

There are four takeaways from the Dos Reis decision:

  • Imperfect or inelegantly drafted bylaw provisions can still be enforced if the scheme and intent of the bylaw is clear;
  • Local governments must demonstrate that the bylaw’s comprehensive regulatory scheme supports the provision in question;
  • Bylaws should be reviewed on a regular basis to ensure enforceability; and
  • It is more cost-effective to have legal counsel review your bylaw than to have the Courts do so.

Special acknowledgement for the success of this case goes to Lorne Fletcher, Paul Lambert and Matthew Baldwin of the City of Langford, and lawyer Elena Merritt and legal assistant Sarah Innes at GovLaw.

To view the entire Dos Reis Reasons for Judgement click here.


Author: Troy DeSouza, Lawyer at Dominion GovLaw LLP