Payback on Prosecutions
Troy DeSouza
It has been a busy summer, but good news for local governments on prosecutions. A special shout-out goes to Judicial Justice Burgess in Kelowna for some very helpful decisions. The Provincial court has provided added value to local governments who are looking for a compliance tool that provides effective results, decent cost recovery and does not require Council or Board approval. That tool is prosecutions by way of long form information (“LFI”).
In June, in the City of Kelowna v. Ackerman, the accused, was an owner of a million-dollar residential property that was being used as an unlawful short-term rental (“STR”). Mr. Ackerman had been operating this STR for over three years without a business license and routinely ignored the $500 bylaw notice tickets that were issued for noise. A $500 ticket was a drop in the bucket against a $5,000 dollar take for a 2-day STR rental! Judicial Justice Burgess saw through this scheme and granted a total fine award to the City in the amount of $18,000 plus a prohibition on the unlawful use.
In July, in the Regional District of Central Okanagan v. Sisett, RDCO received Reasons for Judgment for an MTI conviction on a dangerous dog owner. While Judicial Justice Burgess could only issue the maximum statutorily prescribed penalty of a $1,000 fine, he indicated in his reasons that had the government proceeded with an information prosecution (ie. LFI) he would have awarded an additional $6,030.72 to the victim dog owner as restitution for the payment of her vet bills! This case is currently on appeal, but we are confident RDCO will prevail.
In August, in the City of Nanaimo v. Ahlstrom, a Provincial Court Judge granted a warrant to arrest a repeat offender for local government bylaw breaches. Mr. Ahlstrom ran a rotating one-man campsite and would sometimes burn his sites along the way (and this during a horrible fire season in BC!) The warrant, obtained in advance, required the RCMP to make an arrest. Former criminal defence lawyer (I know, I know. But I saw the good in her – like Darth Vader) Jordan McKay attended as municipal prosecutor by phone to place conditions on Mr. Ahlstrom including red zoning out of the neighborhood. Thus the order burnishes the efficacy and applicability of GovLaw’s Catch and Release program by effectively using a Warrant with an LFI for immediate results!
The above three cases provide important roadmaps for local governments in this post-COVID-age where people are, frankly, more resistant to compliance. The Courts are more willing to drop the hammer with greater fines, restitution for victims and prohibitions for future bylaw breaches if you present a good case.
