IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	Salt Spring Island Rod and Gun Club v. Capital Regional District,
	2013 BCSC 1612

Date: 20130903

Docket: S69775

Registry: Nanaimo

Between:

Salt Spring Island Rod and Gun Club

Petitioner

And

Capital Regional District

Respondent

Before: The Honourable Mr. Justice Bowden

Reasons for Judgment

Counsel for the Petitioner:	J.P. Millbank
Counsel for the Respondent:	T.J.DeSouza
Place and Date of Chambers Petition:	Nanaimo, B.C. August 1, 2013
Place and Date of Judgment:	Nanaimo, B.C. September 3, 2013

 

I.                 Introduction

[1]             The petitioner, Salt Spring Island Rod and Gun Club, seeks a declaration that sections 2 and 3(6) of Bylaw No. 3384, a Noise Suppression Bylaw on Salt Spring Island, are invalid and that municipal tickets issued to the petitioner thereunder be quashed.

II.               Factual Background

[2]             The petitioner was incorporated as a registered society in 1961 and has operated for many years both before and after that year. It operates on land on Salt Spring Island that is within the jurisdiction of the Capital Regional District (“CRD”).

[3]             Since 1961, the petitioner has established on its lands a clubhouse, an indoor and outdoor shooting range, a trap shooting field, an archery field and other facilities. Outdoor shooting activities have been carried on consistently since that time.

[4]             Over the past two years the CRD has received numerous complaints from neighbours adjacent to the petitioner’s property about the noise from the discharge of firearms.

[5]             As a result, three tickets were issued to the petitioner under section 2, and three tickets were issued under section 3(6) of Bylaw No. 3384. Before proceeding with a dispute of the tickets, the petitioner commenced these proceedings to challenge the validity of those sections.

III.             Statutory Framework and Bylaw History

[6]             Section 724(1) of the Local Government Act, R.S.B.C. 1996, c. 323, provides, in part:

724 (1) If a regional district provides a service referred to in section 797.1 (1) (d), the board may, by bylaw, do one or more of the following:

(a) regulate or prohibit the making or causing of noises or sounds in or on a highway or elsewhere in the regional district

(i) that disturb, or tend to disturb, the quiet, peace, rest, enjoyment, comfort or convenience of the neighbourhood, or of persons in the vicinity, or

(ii) that the board believes are objectionable or liable to disturb the quiet, peace, rest, enjoyment, comfort or convenience of individuals or the public;

[7]             Pursuant to its authority under the Local Government Act, the CRD has enacted bylaws to regulate noise on Salt Spring Island.

[8]             The first noise bylaw on Salt Spring Island was enacted in 1986. Section 2 of Bylaw No. 1441 provided:

No person shall make, cause to be made, or to continue to make any objectionable noise in, or on, a highway, at, in or on, streets, wharves, docks, beaches or elsewhere in the electoral area.

[9]             Section 4(7) of that Bylaw provided the following exemption:

Discharge of firearms at outdoor rifle ranges or trap fields operated by a lawfully operated gun or rod and gun club, after nine o’clock in the forenoon and before sunset.

[10]         Bylaw 2047, enacted in 1992, replaced the earlier general noise bylaw with the following in section 2:

No person shall make, cause to be made, or continue to make any noise or sound in the Electoral Area which creates a noise that disturbs or tends to disturb the quiet, peace, rest, enjoyment, comfort or convenience of the neighbourhood or of persons at or near the source of such noise or sound.

[11]         Bylaw 2047 continued the exemption for the discharge of firearms at a gun club.

[12]         Bylaw No. 3384 (the “Bylaw”), enacted in 2006, included the same general noise bylaw in section 2 but the exemption was deleted. Section 3(6), described as a “specific prohibition,”, was added and provided:

No person shall discharge a firearm before 9:00 am or after sunset that disturbs other people as described in Section 2 of this Bylaw.

[13]         Prior to its enactment, notice of the proposed Bylaw was published in the local newspaper and the public was permitted to inspect the proposed Bylaw at the CRD’s Salt Spring Island office or on the internet. The notice stated:

The purpose of Bylaw No. 3384 is to ensure the peace and enjoyment of the residents in the Salt Spring Island Electoral Area by establishing regulations and penalties to assist with and encourage the abatement and control of disturbing noise.

[14]         The current zoning of the land where the petitioner is situated permits “non-commercial active outdoor recreation.” The respondent accepts that this permits the shooting activities that take place on the petitioner’s property.

IV.            Position of the Parties

[15]         The petitioner challenges the validity of section 2 on the basis of vagueness and says that an ordinary member of the petitioner club cannot understand what noise is permitted when they discharge a firearm. That section does not define what sort of noise is prohibited and what sort is permissible.

[16]         The petitioner also argues that the Bylaw is a collateral attack on the permitted use of the land under the applicable zoning. It argues that since the making of noise by discharging firearms is necessarily a feature of an outdoor shooting range, a noise bylaw that prevents the firing of guns that may tend to disturb someone close by, effectively denies the petitioner the right to carry on activities authorized by the zoning. Further, in effect, by issuing tickets the CRD is seeking to prevent the lawful use of the land which involves the discharge of firearms.

[17]         The petitioner also submits that the Bylaw is discriminatory but accepts that the evidence does not support that position.

[18]         The petitioner also argues that while section 3(6) appears to permit the noise from the discharge of firearms between 9:00 a.m. and sunset, the CRD considers that the general noise restriction in section 2 applies to that period of time although the three tickets issued under section 3(6) all relate to the discharge of firearms after sunset.

[19]         The respondent submits that case authorities dealing with materially identical provisions to section 2 of the Bylaw have upheld their validity.

[20]         With regard to section 3(6), the respondent says that the discharge of firearms is permitted from 9:00 a.m. until sunset unless the noise emitted is unreasonably loud and disturbs persons as provided in section 2. The respondent says that unless that qualification is made there would be no limit to the volume or intensity of a noise emitted by the discharge of firearms between 9:00 a.m. and sunset.

[21]         The respondent also submits that the Bylaw does not make the petitioner’s permitted land use activities impossible to exercise. The respondent says that the Bylaw is regulatory and restricts but does not prohibit the use. Section 2 is a general regulation applicable to all persons, not just members of the petitioner club and section 3(6) restricts the discharge of firearms outside the period from 9:00 a.m. to sunset, not just to the discharge of firearms by members of the petitioner.

V.              Analysis

[22]         In considering whether a bylaw is invalid because of its vagueness, Levine J.A. said at para. 47 of Okanagan Land Development Corporation v. City of Vernon, 2012 BCCA 332:

There are well-established principles for interpreting municipal bylaws to determine if they are vague or uncertain.

[23]         The test for uncertainty articulated by Oppal J. in Dhillon v. Richmond (Mun.), [1987] B.C.J. No. 1566, was approved by the Court of Appeal. Oppal J. stated:

The general approach to examining a municipal bylaw whose validity is challenged on the grounds of uncertainty or vagueness is that the vagueness must be so pronounced that a reasonably intelligent person would be unable to determine the meaning of the bylaw and govern his actions accordingly. A mere difficulty in interpretation will not be sufficient.

[24]         In Okanagan Land Development Corporation, Levine J.A. stated at para. 50:

… municipal bylaws are to be interpreted “benevolently” and supported if possible. What is required is that a reasonably intelligent person be able to determine the meaning of the bylaw and govern his or her actions accordingly. …

[25]         In Dhillon, this Court considered whether a noise control bylaw was invalid because of its uncertainty. The impugned bylaw read as follows:

A person shall not make nor permit to be made, by any animal, or by any bird or fowl, or by any vehicle, conveyance, vessel, machinery, equipment or device, or by any activity, a noise, which disturbs or tends to disturb the quiet, peace, rest, enjoyment, comfort or convenience of any person or persons in the neighbourhood or vicinity.

[26]         The noise in question was that which emanated from noise making devices used on a blueberry farm to frighten away birds.

[27]         At para. 26, Oppal J. stated:

Although there are some subjective elements in the words “tend to disturb”, “quiet”, “peace”, “rest”, “enjoyment”, “comfort” and “convenience” the use of the expression “tend to disturb”, I do not think that these subjective elements cause special or particular problems in interpretation. Moreover, the words “neighbourhood or vicinity” should not lead to any confusion in that it would be a matter of evidence in each individual case.

[28]         In Coquitlam (City) v. Vivanco, [1993] B.C.J. No. 3201, this Court considered the validity of the following bylaw:

No person shall make or cause, or permit to be made or caused, any noise in or on a public or private place which disturbs or tends to disturb the quiet, peace, rest, enjoyment, comfort or convenience of any person or persons in the neighbourhood or vicinity.

[29]         In that case, counsel for the City of Coquitlam argued that the Dhillon decision should be followed and the bylaw upheld. At para. 12, Shaw J. stated:

I am in agreement with the submission of counsel for Coquitlam. In my view, the addition of a definition of noise in the Coquitlam bylaw is not a sufficient basis to distinguish it from the bylaws addressed in Dhillon and the cases that have followed Dhillon, nor does the bylaw definition warrant a different conclusion being arrived at in the case before me. Dhillon is well recognized jurisprudence in this court, and, in my view, I should follow it, and I do so. I respectfully decline to follow Harvey.

[30]         The reference to Harvey was a decision of the then County Court of B.C., R. v. Harvey, [1988] B.C.J. No. 1285, relied on by the petitioner in the case at bar, which distinguished Dhillon.

[31]         I am in agreement with the respondent that materially identical general noise bylaws have been considered and upheld by this Court and I am not satisfied that there is any reason to distinguish those cases in considering the impugned Bylaw in this case. In my view, section 2 of the Bylaw is valid and not void for vagueness or uncertainty.

[32]         Based on my interpretation of the combined effect of sections 2 and 3(6) of the Bylaw I also do not consider that the Bylaw prohibits the activities of the petitioner that are permitted on its property by the zoning bylaw. In particular, the specific prohibition in section 3(6) provides a time period when the discharge of firearms is implicitly not prohibited.

[33]         There is no question that the discharge of any firearm creates noise, and such noise might well tend to disturb someone in the vicinity of the petitioner’s property. Accordingly, in my view, section 3(6) contemplates that there will be noise when firearms are discharged between 9:00 a.m. and sunset, and that such noise is not subject to the general noise bylaw in section 2. Indeed, even if a firearm is discharged outside that period of time, it is only prohibited if the noise therefrom disturbs the neighbourhood as provided in section 2.

[34]         If the respondent’s interpretation of section 3(6) is correct, namely, that section 2 limits the noise emanating from the discharge of firearms at any time, including the period from 9:00 a.m. until sunset, then in my view the combined effect of sections 2 and 3(6) would be to prohibit the activity of discharging firearms on the petitioner’s property as permitted under the current zoning.

[35]         Clearly, the activity of discharging firearms on an outdoor shooting range will create noise and if the effect of sections 2 and 3(6) of the Bylaw is to prohibit noise, as described in section 2, emanating from the petitioner’s property at any time, then the discharge of firearms on the petitioner’s property at any time will offend the Bylaws. As the petitioner says, that result will effectively deny the gun club the right to carry on the activities authorized by the zoning bylaw. It would be absurd to think that the permitted activity of discharging firearms on the petitioner’s property only allows the discharge of firearms that do not create noise.

[36]         Romilly J.’s comments about a dog kennel in Coquitlam (City) v. Crawford et al, 2007 BCSC 146 at para. 5, could well apply to the operation of a gun club:

… There is also no suggestion that when the City permitted the commercial kennel on the Respondents’ property it was intended that only silent dogs should be kept there. The fact is that dogs bark. This fact must have been realized by the City when they allowed the Respondents to operate a commercial kennel on their property.

[37]         Just as dogs bark, firearms make noise when discharged. This must have been realized by the Islands Trust when the zoning bylaws were passed, allowing activities which include the discharge of firearms on the petitioner’s property.

[38]         The respondent argued that some restriction on noise emanating from the petitioner’s property between 9:00 a.m. and sunset is necessary. Using the example of the discharge of a Howitzer, the respondent says that clearly such noise would be disturbing to the neighbourhood.

[39]         In my view, while the example used by the respondent is unrealistic or, at least, not supported by any evidence, it does point to the desirability of some reasonable standard applying to noise emanating from the petitioner’s property between 9:00 a.m. and sunset.

[40]         While I consider that the Bylaw, as currently drafted, does not restrict the noise emanating from the discharge of firearms on the petitioner’s property between 9:00 a.m. and sunset, it is my view that the CRD could enact bylaws that clearly define impermissible noise from that source by reference to criteria such as the decibel level as measured on a sound level measuring device or other objectively determinable criteria.

[41]         In the end result, the petition is dismissed. With regard to the municipal tickets, if any of them relate to the discharge of firearms between 9:00 a.m. and sunset, they are quashed. Otherwise, the petitioner is free to dispute the tickets based upon the facts and circumstances of the alleged violations.

[42]         Costs are awarded to the respondent at Scale B.

“Bowden J.”