Nudists Anonymous and the Great Dog Insurrection of ’88

Everybody has one, a favorite much read and beloved book.  Whether it is The Great Gatsby, Wuthering Heights, or Harry Potter and the Philosopher’s Stone, it sits, dog eared and with cracked spine, on a bookshelf waiting to be pulled down and re-read at regular intervals.

I have a few such tattered paperbacks at home, but at work I have Kuypers v. The Township of Langley, 1992 CanLII 693 (BCSC).   When I simply cannot read another dull prolixly decision, or when I begin to think that most lawyers and judges had their sense of humour surgically removed while in law school, I pull this case off the credenza in my office.  My copy is tattered and coffee stained but the words remain clear and reading it never fails to brighten my day.

The decision involved an application to have the Township of Langley’s “Dangerous Dog” Municipal Bylaw declared ultra vires.

Leading up to the application, the Plaintiff’s beloved “pure bred Scottish collie”, Robbie, had been accused of nipping the “right gluteus maximus” of an innocent pedestrian and in response was seized by the Township’s employees who when faced with protestations of Robbie’s innocence, announced that they had the power under the bylaw to “execute him on the spot”:

No line-up, photo or otherwise for Robbie, no charge, no dramatic readings of the Canine Charter of Rights and Freedoms, no plea, no trial, no application of the ancient and historic presumption of innocence, no appeal to the majesty of the Court of Appeal: guilt or innocence undetermined, Robbie faced the ignominy of almost immediate oblivion.

Fortunately, Robbie was spared a visit to the big dog park in the sky but was rather sent to the Langley Pound which Mr. Justice Hogarth noted was “a far cry from the warmth, solicitude and understanding of home and hearth and which to him was indeed the equivalent of a canine Gulaag.”

The Plaintiffs, “outraged by the effrontery to Robbie’s character, insisted that not only shall every dog have his day, but this dog shall have his day in Court” and brought an application claiming that the Township did not have the powers to enact the Dangerous Dog Bylaw and further, that it infringed upon the Plaintiff’s rights under the Canadian Charter of Rights and Freedoms to be free from unreasonable search and seizure of their property.

The Township argued that the Dangerous Dog Bylaw was enacted under the “emergency” provisions of the Municipal Act R.S.B.C. 1978 chapter. 290 which they said “literally, at least in part, was designed to keep the Municipality from going to the dogs, when all other powers were wanting”.   In response to which, Mr. Justice Hogarth commented that:

At first glance one assumes that this is a sort of “War Measures Act” for Municipalities.  Within the context of the present case, one has visions of “The Great Dog Insurrection of ’88”: British Bulldogs, German Shepherds, Russian Wolfhounds and the like, huddled in secret kennels presided over by an imperious Pekinese, plotting to overthrow the lawful authorities by force, while hounds in packs roam the highways and byways of the Defendant Township striking terror into the hearts of the citizens, ripping babies to shreds and the like.

The Township further argued that once the Council has declared a matter an “emergency” such cannot be questioned.  To which Mr. Justice Hogarth stated that such “contention seems to me to be based on the somewhat “Alice in Wonderland” view that if the Council ex cathedra says so, it is so, whether it is, was, or not, or ever will be.”

However, the Township relied on two earlier cases to support this proposition.  In Kent v. Storogoff, (1962) 38 D.L.R. (2d) 362 (BCSC), the Municipality of Kent, when faced with what they considered “Apocalypse Now” in downtown Agassiz, attempted to ban all members of the “Sons of Freedom” from Kent with the pre-amble to the bylaw stating that:

… the “sect are addicted to nudism, arson and the illegal use of dynamite and explosive devices”.  Now explosives and the like aside, I have never heard of anyone being “addicted to nudism” but there may be evils in Kent of which we in New Westminster are unaware.  Is there a “Nudists Anonymous” for those susceptible to chills?

The second decision of E & J Murphy Ltd. v Victoria et al, (1976) 1 M.P.L.R. 166, involved the City of Victoria suspending all building and demolition permits in response to what they considered the destruction of many residences and properties of historical value.  As noted by Mr. Justice Hogarth:

Apparently progress was destroying them at an alarming rate and the Council found that they did not have time to put an appropriate Bylaw in place to control the demolition that was going on.  It is difficult to understand how such an event could occur on the sudden except perhaps the swiftness of events in Victoria is not held to the same standards as elsewhere in the Empire.

Ultimately Mr. Justice Hogarth held “that the validity of any delegated legislative enactment can be determined at any time by the Court from the point of view of the bone fides of the enactment and this includes an inquiry into the exercise of powers which as a sine qua non to their implementation are based on the existence of particular factual circumstances, in the case at bar the factual existence of an ’emergency'”.  Further, any bylaw drafted to meet an emergency must be designed to deal with a specific situation, existent or immediately expected event and thus must be limited in time.

Here, the Township’s Dangerous Dog Bylaw was passed in 1988 and by 1992 “Robbie may be the only dog left in town, the others either executed or otherwise having fled to safer realms”.  As such, Mr. Justice Hogarth found that the bylaw, insofar as it purported to be passed under the emergency provisions of the Municipal Act, could not stand and accordingly was declared invalid in its entirety.

Mr. Justice Hogarth concluded with some comments directed specifically to Robbie:

As for Robbie I trust he will apply to my judgment the immortal words of Christopher Morley that “no one appreciates the very special genius of your conversation as a dog does”, and he might well bear in mind that the common-law only allows a dog one bite before he can be condemned.

The full reasons for judgment can be viewed (and printed to go on your bookshelf) here.