IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         The Animal Control Officer for the City of Port Coquitlam is applying for the following:

[2]         Sharon Bennett is the owner of Kujo. She did not attend the hearing although her counsel, Mr. Larmer, was present. Mr. Larmer advised that he has not had any recent contact with his client but was prepared to proceed in her absence. This matter was previously set for trial and was adjourned to this date. Despite the absence of Ms. Bennett, I held that the trial would still proceed. I note that the dog Kujo has been impounded by the City of Port Coquitlam (the “City”) since approximately September 15, 2021. Further delay in the trial would be unfair to the City, which is incurring boarding fees, and to Kujo who remains impounded.

[3]         The co-respondent, Todd Leduc, has never appeared in these proceedings. I will discuss his involvement in this matter later in my Reasons.

[4]         In Port Coquitlam, dangerous dogs are governed by the provisions of the Community Charter, the relevant portions of which are as follows:

[5]         The wording used at s. 49 of the Community Charter is the same as is used in s. 324.1 of the Vancouver Charter, S.B.C. 1953, c. 55, which was discussed in the leading case of Santics v. Vancouver (City) Animal Control Officer, 2019 BCCA 294.

[6]         In the Santics decision, the court held at paras. 65 and 66 that:

[7]         As set out at para. 67 of Santics, in determining whether a dog is likely to kill or injure in future, the court must perform a contextual and prospective analysis of the danger posed by the dog to the public, taking into consideration whether the dog was attempting to prevent a person from committing an unlawful act, or was performing law enforcement work. These two factors are set out at s. 49(3) of the Community Charter and s. 324.1(3) of the Vancouver Charter, but are not applicable in this case.

[8]         The court is also able to receive evidence of other factors that “bear upon a dog’s prospective dangerousness [including] its past and present temperament and any extenuating circumstances that would make a future attack unlikely”: see Santics v. Vancouver (City) Animal Control Officer at para. 68.

[9]         As stated in New Westminster (City) v. Ash, 2006 BCPC 635 at para. 19:

[10]      The standard of proof is on the balance of probabilities: see Santics v. Vancouver (City) Animal Control Officer at para. 69; Animal Control Officer for Fraser Valley Regional District v. Carlson, 2022 BCPC 225 at para. 8.

[11]      There is no traditional burden of proof and the court must consider the totality of the available evidence regardless of which party adduced it: Santics v. Vancouver (City) Animal Control Officer at para. 69.

[12]      The court lacks the jurisdiction to make a conditional order that would allow for the return of the dog to the owner on certain terms. An example of a conditional order would be a requirement for an owner to keep a dog muzzled when in public.

[13]      An animal control officer and an owner may still agree to an order for the control of the dog which, if complied with, would remove or minimize the risk to the public and avoid the need for a destruction order. Such terms are often incorporated into a consent order. These types of protective orders can only be made with the agreement of the parties and the court has no authority to impose terms: Santics v. Vancouver (City) Animal Control Officer at para. 70.

[14]      I must also consider the Port Coquitlam Animal Control Bylaw No. 3990 (the “Bylaw”), described as “A Bylaw to regulate and prohibit the keeping of Animals and to provide for the licencing, seizure, and impoundment of animals.”

[15]      Section 2 of the Bylaw provides as follows:

[16]      Section 8(1) of the Bylaw requires every owner of a dog to prevent the dog from being or running “At Large.”

[17]      Among other things, s. 10 of the Bylaw allows an animal control officer to require an owner of an “aggressive dog” to keep that dog securely confined either indoors or outdoors in a locked enclosure. The dog may be out of the secured enclosure and allowed on any highway, in any public place or in any other place that is not owned or controlled by the owner if the dog is secured to a responsible adult with a non-retractable leash.

[18]      Section 11 of the Bylaw deals with “dangerous dogs.” If an animal control officer determines that a dog is a “dangerous dog,” the owner is required to post a sign at all points of entry to their premises stating that a dangerous dog is present. The dog must be kept securely confined indoors or outdoors in a locked enclosure. The dog is not permitted to be on any highway, in any public place or in any other place that is not owned or controlled by the owner unless the dog is muzzled and secured to a responsible adult on a non-retractable leash.

[19]      Section 14 of the Bylaw permits an animal control officer to seize any dog found at large and deliver the dog to the poundkeeper for impoundment. The powers of a poundkeeper are set out at s. 5 of the Bylaw.

[20]      An Agreed Statement of Facts has been put into evidence. I summarize the agreed facts as follows:

[21]      Alia Stachoski testified about the effects of Kujo’s attack upon her. She had numbness in her wrist for some 1.5 months after the attack. She had bruising for several months. She still has scars on her right wrist.

[22]      Ms. Stachoski said she has become more anxious around dogs, even dogs that she knew.

[23]      Other than the scars, she no longer has any physical issues.

[24]      Despite her anxiety around dogs, she remained working at Countryside Kennels after the attack, although she no longer works for dogs at this time.     

[25]      Officer Finn has been employed as a Bylaw Enforcement – Animal Control Officer for the City of Port Coquitlam since January 2019. Her duties include investigating allegations of dangerous dogs, including dog bites.

[26]      Officer Finn identified Kujo from a photograph of the dog that was put into evidence. She first met Kujo in May 2020, when Kujo’s owner, Ms. Bennett, was hospitalized and Kujo was impounded. Ms. Bennett informed Officer Finn that Todd Leduc was entitled to pick up Kujo. Officer Finn said this was a common occurrence.

[27]      Officer Finn said there have been multiple complaints about Kujo, that he has been caught running at large 22 times and bitten people four times.

[28]      Officer Finn referred to an incident on September 15, 2021, where she met with Brad Hertslet at his home.

[29]      There were two dogs in Mr. Hertslet’s yard. One was Kujo; the second dog was named “Wuppy.” Officer Finn observed that Mr. Hertslet had blood on his hand.

[30]      Officer Finn took both dogs to the animal shelter.

[31]      Mr. Hertslet did not testify at trial and his statement to Officer Finn would be hearsay evidence if adduced for the truth of its content. I will discuss the nature of hearsay evidence later in my decision.

[32]      There is no evidence that Mr. Hertslet was bitten by Kujo.

[33]      Officer Finn also investigated the September 16, 2021 incident involving Kujo and Alia Stachoski.

[34]      Officer Finn created a chart based on records of calls received by the Coquitlam Animal Shelter. Copies of the actual records were not put into evidence and I will discuss this omission later in my decision.

[35]      Officer Finn referred to this chart to show that Kujo was at large on 22 occasions. However, the chart only referred to Kujo by name once, an incident on January 23, 2021, regarding a report of a dog at large at Gates Park.

[36]      The May 24, 2020 note referred to a “Brindle Terrier” although I understand that breed of dog can be similar in appearance to a pit bull type dog such as Kujo.

[37]      The August 6, 2021 note refers to a dog being returned to “Marcia” and I presume this is not Ms. Bennett or Mr. Leduc.

[38]      All other entries did not provide any information that would allow me to link a report to Kujo.

[39]      Officer Finn testified that anytime Kujo was impounded, she would phone or attend at the home of Ms. Bennet or Mr. Leduc. I accept that this occurred on several occasions although I do not accept Officer Finn’s chart as evidence that Kujo has been at large 22 times.

[40]      Officer Finn said that both Ms. Bennett and Mr. Leduc are homeless. Ms. Bennett resides in a camp at Gates Park in Port Coquitlam. Mr. Leduc resides in a camp near Mary Hill and Argue Street, also in Port Coquitlam.

[41]      Officer Finn spoke to Ms. Bennett on September 17, 2021, about Kujo. Ms. Bennett would not agree to the voluntary surrender of Kujo.

[42]      Officer Finn also discussed whether Kujo could be kept on a leash. Ms. Bennet said this was not possible as she was homeless. Officer Finn felt that Ms. Bennett was unwilling to control Kujo.

[43]      Officer Finn gave Ms. Bennett a letter dated September 25, 2021, advising her that Kujo was considered a “dangerous dog” as defined in the Community Charter and that the City would now pursue a destruction order.

[44]      Officer Finn was also asked about her conversations with Todd Leduc. An issue arose as to whether Mr. Leduc was properly a respondent in these proceedings, such that his statements to Officer Finn would be considered an exception to the hearsay evidence rule. A voir dire was conducted on this question.

[45]      I held that Mr. Leduc fell within the definition of “owner” as found in the Bylaw. The definition of “owner” included “any person allowing a Domestic Animal to remain about his or her house or premises.” I found that Mr. Leduc’s camp was a “premise” within the meaning of the Bylaw and that the evidence was clear Mr. Leduc often had Kujo at or about his premises.

[46]      As a result, Mr. Leduc is properly a respondent in these proceedings. His statements to Officer Finn would be an admission and an exception to the hearsay rule.

[47]      Officer Finn testified about a discussion she had with Mr. Leduc. Mr. Leduc had a muzzle for Kujo, a photo of which was put into evidence. Mr. Leduc told Officer Finn that a shelter he was staying at required Kujo to wear a muzzle due to the type of dog Kujo was. Officer Finn said she understood that this referred to Kujo’s behaviour. She agreed though that this comment may have been a reference to the breed of dog.

[48]      Officer Finn also gave Mr. Leduc a letter dated September 25, 2021, advising him that Kujo was considered a “dangerous dog” as defined in the Community Charter and that the City would now pursue a destruction order.

[49]      Officer Finn summarized her position, stating that she believed Kujo was a public safety risk as he was frequently at large, he has bitten people and there are no attempts by the owners to control Kujo.

[50]      Earlier on, I referred to Officer Finn’s use of a chart summarizing records of calls received by the Coquitlam Animal Shelter. The actual records themselves may have been admissible into evidence under the BC Evidence Act, R.S.B.C. 1996, c. 124 but they were not put into evidence. I refer to the decision Animal Control Officer for Fraser Valley Regional District v. Carlson, 2022 BCPC 225 at para. 10 for an example where animal control files were admitted into evidence under s. 42 of the Evidence Act. They may also have been admissible under s. 28 of the Act.

[51]      A summary of records may be of assistance to the court but they need to be supported by the actual records themselves so that both the opposing party and the court can ensure the accuracy of the summary. I refer to the decision of Coor Nuclear Services Inc. v. Mendes, 2016 NBQB 66 at para. 21 which stated:

[52]      Although Officer Finn’s chart was entered into evidence, the chart carries little weight because the actual records of calls received by the Coquitlam Animal Shelter were not put into evidence. As I have also noted, there is only one reference to Kujo in that chart and it only said Kujo was running loose.

[53]      Hearsay evidence is an out-of-court statement tendered for the proof of its contents. The intended use of the statement determines if the evidence is hearsay. In general, hearsay evidence is not permitted at trial given concerns over its reliability. There are many categorical exceptions to the hearsay rule, but even if the evidence falls within a listed exception, the evidence must still be necessary and reliable: R v. Starr, 2000 SCC 40 (CanLII), [2000] 2 SCR 144.

[54]      During the trial, the City sought to rely upon an out-of-court statement made to Officer Finn by Brad Hertslet. Mr. Hertslet was not called as a witness at trial, and there was no suggestion that he was not available. Whatever statement he may have made to Officer Finn was not admissible.

[55]      The statements made by the respondents to Officer Finn were admissible as admissions, a categorical exception to the hearsay rule.

[56]      As discussed, Officer Finn had a summary chart suggesting Kujo has been at large 22 times. I did not accept this as evidence of the number of times Kujo has been at large given the original reports to the Coquitlam Animal Shelter were never put into evidence. Nevertheless, I am satisfied that Kujo is frequently found running at large based on Officer Finn’s personal experience retrieving Kujo.

[57]      In the August 19, 2021 incident, Kujo dragged Nicole Smith causing her injuries. From my own experience, it is not uncommon for dogs to become excited and run away. There is no indication though that during this incident Kujo attacked anyone or acted aggressively. I do not consider this incident as evidence that Kujo is a dangerous dog.

[58]      The video taken September 15, 2021, does show that for a brief instance, Kujo acted aggressively in jumping against the kennel door toward Ms. Isherwood.

[59]      The September 16, 2021 incident involving Alia Stachoski caused several puncture wounds, with residual physical symptoms lasting a few months and ongoing anxiety about dogs.

[60]      The August 12, 2022 incident involving Darraugh Evans also involved Kujo biting and causing three puncture wounds to Ms. Evans, along with soft tissue damage and a swollen wrist.

[61]       The evidence presented by the City does not show any other incidents of Kujo attacking or biting anyone.

[62]      The owner of Kujo, Ms. Bennett, has stated she cannot restrain Kujo as she is homeless.

[63]      Mr. Leduc is the frequent caretaker of Kujo and he is also homeless. He did show Officer Finn a muzzle he had for Kujo and this suggests he has some ability to control Kujo.

[64]      Given that both Ms. Bennett and Mr. Leduc are homeless and lack premises that can secure Kujo, I am satisfied that the options for control of an aggressive or dangerous dog according to the Bylaw were not available. The only recourse would be an application for a destruction order under the Community Charter.

[65]      The Community Charter defines a “dangerous dog” to include one that has killed or seriously injured a person.

[66]      There are two instances where Kujo has bitten a person. In both cases, the victims suffered puncture wounds along with other injuries.

[67]      The BCCA decision in Santics originated from a trial decision before me, which was reported as City of Vancouver v. Santics, 2018 BCPC 381. In that decision, I considered whether the victim was seriously injured by a dog. Starting at para. 77, I stated as follows:

[68]      In the decision The City of Prince George v. McLeod, 2004 BCPC 8, Judge Skilnick dealt with an application for a destruction order under the Local Government Act, R.S.B.C. 1996, c. 33, which has since been amended. Judge Skilnick found that although the dog had never killed or seriously injured anything, human or animal, it ran unchecked in public and acted aggressively. Judge Skilnick held that based on the dog’s behaviour, the animal control officer had reasonable grounds to believe that the dog was likely to kill or seriously injure a person, and was therefore a dangerous dog.

[69]      In this case, there is no evidence that Kujo was acting aggressively while at large.

[70]      On the facts before me, I am satisfied that the injuries caused by Kujo fell within the meaning of a “serious injury” as found in s. 49 of the Community Charter. Both attacks involved puncture wounds. The attack on Ms. Stachoski was more significant as its physical repercussions lasted for several months. The pictures of her injuries were especially disturbing.

[71]      Having found that Kujo did cause a serious injury, I conclude that Kujo was a dangerous dog within the meaning of s. 49(2) and the animal control officer did have the statutory grounds to seize Kujo.

[72]      Section 49(10) of the Community Charter states:

[73]      As set out in the Santics decision at para. 66, if I find that Kujo is likely to kill or injure in future, then I have no option other than an order for destruction.

[74]      Officer Finn has testified that in her view, there should be a destruction order. She believes Kujo to be a public safety risk as he is frequently at large, he has bitten people and there are no attempts by the owners to control Kujo.

[75]      The evidence is clear that Kujo is frequently at large without any attempt by the respondents to control him.

[76]      There are two instances where Kujo caused serious injury. In both instances where Kujo has attacked someone, he was in the kennel. Counsel for Ms. Bennett asked me to infer that Kujo only bites when he is in the kennel.

[77]      The City has not provided any evidence to show that Kujo bites when running at large.

[78]      Neither party has tendered any expert evidence to show what Kujo’s tendencies are, as was the case in the decisions Fraser Valley Regional District v. Carlson, referred to earlier, and R. v. Kucera, 2001 BCPC 360. However, expert evidence is not always a necessity, as shown in the Santics decision.

[79]      I refer again to the decision The City of Prince George v. McLeod, at para. 33, where the court said:

[80]      What is clear is that Kujo has bitten two persons almost a year apart. In both cases, Kujo had been locked in a kennel. However, without further evidence, I am not prepared to infer that Kujo will only bite when he is caged.

[81]      Ms. Bennett is unwilling or unable to control the Kujo. Mr. Leduc may have some ability to control the dog as he has used a muzzle on Kujo before but he is not the primary owner. An owner’s capacity to control the dog is relevant to the likelihood of the dog killing or causing injury in the future.

[82]      The past actions of Kujo are that he has bitten two different people, causing serious injuries. I find that this is a strong indicator of the likelihood of his future actions.

[83]      In cases such as this, the safety of the public is of primary importance. This extends to the need to protect animal control officers, who are authorized to seize a dog found at large, and to the poundkeeper and its employees, who are mandated by the Bylaw to impound a seized dog.

[84]      Given the evidence before me, I am satisfied on the balance of probabilities that Kujo is likely to kill or injure in future. This is especially the case because Kujo is frequently found at large requiring him to be seized and impounded.

[85]      In light of this finding, I have no choice but to make an order for the destruction of Kujo. This order will be carried out by a qualified veterinarian but is not to occur until at least 31 days after the date of this order in case of any appeal.

[86]      I order as follows:

[87]      I ask Ms. Tikhonova to draft and file the order after obtaining Mr. Larmer’s approval of the form of the order.