ADMINISTRATIVE REPORT

Date: April 12, 2000
Author/Local: P. Scheer/7692
RTS No. 001435

CC File Nos. 113 / 3755

Council: April 18, 2000

TO:	Vancouver City Council
FROM:	Director of Legal Services
SUBJECT:	Amendment to the Noise Control By-law and the penalty provisions of other regularly enforced By-laws

RECOMMENDATION

A. THAT the provision in the Noise Control By-law dealing with dogs and other animals be amended as discussed in this report.

B. THAT the penalty provisions in the by-laws referred to in Appendix A be amended to remove the possible penalty of imprisonment.

C. THAT the Director of Legal Services be requested to bring forward the amending by-laws for enactment.

If Recommendation C is approved, the by-laws will be presented for enactment at today's meeting of Council.

CITY MANAGER'S COMMENTS

The City Manager RECOMMENDS approval of A, B and C.

POLICY

The Vancouver Charter confers on Council the power to provide for the enforcement of City by-laws by the imposition of fines, imprisonment, or both.

PURPOSE

The purpose of this report is to seek Council approval of amendments to the Noise Control By-law and a number of other regularly enforced by-laws.

BACKGROUND

Pursuant to the provisions of the Vancouver Charter and the Offence Act, for the purpose of enforcing City by-laws Council may, by by-law, provide for a penalty consisting of a fine, imprisonment, or both. The legislation limits the amount of a fine to no more than $2,000 and the period of imprisonment to no more than six months. City by-laws provide for a range of fines from $50 to $2,000. Some by-laws also provide for an alternative penalty of imprisonment for a period not exceeding two months.

DISCUSSION

Section 7 of the Charter of Rights and Freedoms protects "life, liberty and security of the person". Any law that includes a penalty of imprisonment, even if that penalty is not mandatory and is only a "theoretical" possibility, can be challenged under this provision of the Charter.

The provision in the Noise Control By-law which deals with barking dogs was challenged on this basis. (This provision makes it an offence to allow a dog to bark if it can be easily heard by someone not on the same premises.) The Provincial Court has now held that this provision is unenforceable, based on an argument which relied upon section 7 of the Charter of Rights and Freedoms. In reaching this conclusion, the Justice of the Peace commented that a dog-owner could be convicted under the provision as a result of a single loud "woof", whether or not a reasonable person would be disturbed by the sound, and whether or not anyone was, in fact, disturbed. Staff recommend that the by-law be amended to make it an offence to allow a dog to bark if it can easily be heard by someone not on the same premises and if the barking unreasonably disturbs that person.

As a result of this Court decision, staff have reviewed City by-laws and identified a number of other regularly enforced by-laws which also include a possible penalty of two months' imprisonment. These by-laws are set out in Appendix A. When prosecuting charges under the City's by-laws, the City prosecutor does not seek penalties involving imprisonment, and the prosecutor and other staff believe that there are adequate means to enforce the by-laws without the imposition of penalties involving incarceration. (In addition to fines, by-law enforcement can be achieved through other means including, in the appropriate circumstances, the exercise of the City's powers in relation to business licenses and through proceedings for injunctive relief.) In view of this and the fact that any by-law which includes a penalty provision with the theoretical possibility of imprisonment may be subject to a challenge under section 7 of the Charter of Rights and Freedoms, staff recommend that the penalty provisions in the by-laws set out in Appendix A be amended to remove this possibility.

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APPENDIX A

By-law No. 7528, being the Animal Control By-law,
By-law No. 8057, being the Building By-law,
By-law No. 8022, being the Business Premises Regulation of Hours By-law,
By-law No. 2647, being the Club Regulation By-law,
By-law No. 4644, being the Crossing By-law,
By-law No. 5563, being the Electrical By-law,
By-law No. 4243, being the Encroachment By-law,
By-law No. 7004, being the Fire By-law,
By-law No. 4792, being the Granville Mall By-law,
By-law No. 6580, being the Health By-law,
By-law No 3519, being the Impounding By-law,
By-law No. 4450, being the License By-law,
By-law No. 4338, being the Motor Vehicle Noise Abatement By-law,
By-law No. 6555, being the Noise Control By-law,
By-law No. 6059, being the Parking By-law,
By-law No. 2952, being the Parking Meter By-law,
By-law No. 7347, being the Private Property Tree By-law,
By-law No. 2807, being the Secondhand Dealers and Pawnbrokers By-law,
By-law No. 7111, being the Security Alarm System By-law,
By-law No. 7832, being the Solid Waste and Recycling By-law,
By-law No. 2849, being the Street and Traffic By-law,
By-law No. 4781, being the Street Vending By-law,
By-law No. 4548, being the Untidy Premises By-law,
By-law No. 4021, being the Vehicle Licensing By-law,
By-law No. 6066, being the Vehicles for Hire By-law,
By-law No. 8093, being the Wastewater, Storm Water and Watercourse By-law, and
By-law No. 4848, being the Water Works By-law

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