Lawyer takes on Nelson’s dog bylaw

A Nelson lawyer is threatening to sue the city over three tickets he received for walking his dog downtown.

A Nelson lawyer is threatening to sue the city over three tickets he received for walking his dog downtown, but the mayor suggests it may soon be a moot point.

David Aaron claims the bylaw under which he was ticketed Monday is unconstitutional, “totalitarian,” “overkill,” and a “farce.” He also believes he is being harassed because the city didn’t give him a chance to challenge similar citations dating back to 2012.

Aaron said he was walking Abi, his four-year-old labradoodle, this week from Central Bark on Ward Street, where his dog had a wash, to his office in the Medical Arts building on Baker Street when a bylaw officer ticketed him.

“Put simply, we love Abi,” Aaron told the Star in an email. “My 11-year-old son has the same kind of emotional relationship towards Abi that one would have to a sibling. This dog is so much a part of my daily routine, which integrates all the members of my family. I could not imagine leaving her at home.”

Aaron, a mayoral candidate in 2008, said he was previously ticketed walking out of the post office, where staff dispense biscuits each time his dog visits. Abi is similarly received at the Nelson court registry.

In August 2012, Aaron tried to dispute his ticket on the grounds the bylaw violated his Charter rights, and was “arbitrary, discriminatory and not consistently enforced.” But he says the city didn’t reply.

In May 2013, he received a second ticket, which he also disputed. However, police informed him the dog bylaw didn’t fall within the city’s adjudication process and until that changed, there was no way to appeal the fine.

Aaron said without providing him with a hearing, the city was violating his presumption of innocence.

In a letter to the mayor and police chief this week, Aaron wrote: “I have some serious civil liberties concerns where the city continues to effect the coercive force of a bylaw that is shielded from constitutional challenge by the city’s refusal to follow through with enforcement proceedings.”

He said unless the matter “is rectified to my satisfaction” by May 1, he will “seek a judicial remedy in relation to what I assert to be an abuse of process.” He wants an order quashing the three citations, each with an unpaid $70 fine, and another prohibiting the city from issuing further citations under the bylaw until his constitutional challenge is heard.

It’s possible, however, that the bylaw will be rescinded first.

‘Time for sober reflection’

Mayor Deb Kozak, who has previously spoken out in favour of lifting the ban imposed 20 years ago, said staff are expected to propose changes to the bylaw within the next couple of months. During the election campaign last fall, many or most candidates supported revisiting the issue.

City manager Kevin Cormack said if the bylaw is rescinded, it will be up to council to decide whether outstanding tickets will be quashed. “At this point people would be in violation of the bylaw and could be ticketed,” he said. “We would expect those that have tickets to pay them.”

Police chief Wayne Holland said he has spoken with Aaron on several occasions and acknowledged the bylaw’s contentiousness.

“He’s always been polite and professional in bringing to our attention that he won’t stand for it,” Holland said. “I don’t think this bylaw has ever served citizens well. I believe it has shone light on Nelson in many negative ways that were unanticipated when it was created, despite the justification that may have been present.”

Holland suggested it was “time for a sober reflection” of whether to continue the bylaw, which has only resulted in a few dozen tickets over the last few years. He was happy to hear council appears willing to reexamine the issue. The police department supported relaxing the ban for a six-month trial, but the previous council wasn’t interested.

He agreed that there doesn’t appear to be any recourse for someone who receives a ticket to challenge its constitutionality.

Aaron said if the bylaw is set for review and the city won’t address long-standing questions about its constitutional legitimacy, it should tell its by-law officers to stop issuing tickets.