Is a Guinea Fowl a Fowl: an Offender’s Intention and the Interpretation of Bylaws

On June 17, 2024, in the judgment of R v Reid, 2024 BCSC 1044, Madam Justice Sharma of the British Columbia Supreme Court released her decision on what, at first blush, appears to be an undeniably odd question under appeal: is a guinea fowl a “fowl” for the purposes of Vancouver’s Animal Control Bylaw 9150 (The “Animal Control Bylaw”).

The circumstances giving rise to this appeal are straight-forward, and found in the reported decision of Judicial Justice Makhdoom of City of Vancouver v Reid, 2023 BCPC 204. The accused, Ms. Reid, was summarily charged by the City of Vancouver for violating section 7.2 of Vancouver’s Animal Control Bylaw for keeping two guinea fowl as pets on her property. Section 7.2 prohibits the keeping of various domestic animals in any area, temporary or permanent, specifically including “quail, or other poultry or fowl”:

Prohibition against keeping certain domestic animals

7.2 A person must not keep in any area, temporarily or permanently, any horses, donkeys, cattle swine, sheep, ducks, geese, turkeys, pheasants, quail, or other poultry or fowl except that this prohibition does not apply to:

(a)  keeping, hens, subject to sections 7.15 and 7.16;

(b)  areas in which the Zoning and Development By-law allows the keeping of such animals;

(c)  licensed pet shops or kennels;

(d)  slaughter house; or

(e)  the exceptions set out in section 7.4.

The theory pursued by the City during the bylaw’s prosecution was simple.

1) Reid admittedly had two guinea fowls kept in a coop in the backyard of her residence;

2) A guinea fowl, which by its very namesake, must be a fowl; and

3) A guinea fowl must therefore be prohibited under section 7.2 of the Animal Control Bylaw.

Ms. Reid never denied that she kept the guinea fowl but argued that her intention behind keeping them was as pets.

Judicial Justice Makhdoom identified that the bylaw was a strict liability offence, such that if the prohibited action (actus reus) was proven, liability must follow regardless of whatever intention lie behind the accused’s conduct. Section 7.2 of the Animal Control Bylaw prohibited keeping “poultry or fowl”, and so if the guinea fowls are fowl for the purposes of this section and Ms. Reid was keeping them, the offence was made out in these circumstances.

However, the issue was not if Ms. Reid committed the prohibited action – that was duly admitted. In fact, Judicial Justice Makhdoom found as a fact that Ms. Reid kept the two guinea fowl as pets, and not as “poultry either for eggs or meat but kept them for pure joy of companionship” (R v Reid, BCPC 204 at para 21). The issue was one of statutory interpretation and if guinea fowl were properly subsumed into the general reference to “fowl” under section 7.2, or if because guinea fowl was not specifically named, they were properly classified as “exotic birds”. If guinea fowl are an exotic bird, then section 7.5 of the Animal Control Bylaw applies and anyone is permitted to keep up to 12 guinea fowl:

Prohibition against keeping excessive numbers of certain animals

7.5 A person must not keep in any area, temporarily or permanently, at any one time, more than:

(b) 12, in aggregate, registered homing pigeons, canaries, budgerigars, parrots, parakeets, and exotic birds of all species, except that a person who has obtained permission from Council to keep an aviary may have a greater number of such birds in or about the premises designated in the permit;

Judicial Justice Makhdoom determined that the manner in which section 7.2 was drafted with particular concision and precision, such that the mere reference to “fowl” was insufficient to prove the City’s intention to specifically prohibit them as domestic animals. Additionally, in response to the City’s argument that guinea fowl are subsumed under the term “poultry or fowl”, Judicial Justice Makhdoom ruled “poultry” is largely an agro-business term used by the BC Ministry of Agriculture to define a commodity of bird used to agricultural purposes (para 20).

In dismissing the charges against Ms. Reid, Judicial Justice Makhdoom held her purpose, and by extension intention, for keeping the guinea fowl was as pets, not as poultry as that term is understood in relation to agro-business, and therefore the exception provided by section 7.5 applies.

This brings us to the appeal before Justice Sharma. The City brought five grounds of appeal, one of which argued that Judicial Justice Mahkdoom erred by considering Ms. Reid’s intention in keeping the guinea fowl as pets because it was irrelevant to whether or not she violated the Animal Control Bylaw. This is an interesting ground of appeal because of the tension it raises regarding “intention” and how that concept is typically employed in the context of bylaw, regulatory, and criminal offences.

The ”intention” of an individual who breaches a strict liability offence, such as a municipal bylaw, is irrelevant for the purposes of determining their guilt. As strict liability offences, if the prohibited action is committed, the requisite guilt (or criminal intention) to breach the bylaw is essentially inferred, and the accused’s guilt is deemed subject only to the defence of due diligence. Although the question of whether or not interpreting section 7.2 of the Animal Control Bylaw was in and of itself potentially an act of due diligence was not raised, the question if Ms. Reid’s intention was a valid consideration for interpreting the bylaw’s application to her actions is certainly novel.

By considering the accused’s intention behind their commission of a strict liability offence as a means to interpret the offence’s application, is the Court not simply finding a lack of intention to commit the offence? Put another way, is it meaningfully different to use an accused’s intention to interpret the Animal Control Bylaw in a manner such that it does not apply to their actions, as opposed to finding the intention behind their actions frustrates the bylaw’s application?

Justice Sharma determined that accepting Ms. Reid’s own interpretation of the Animal Control Bylaw is proper, because her intention was animated by her own interpretation of the bylaw. Essentially, statutory interpretation is an exercise of determining the statute’s application, and the intention of the authority that enacted the statute is a relevant consideration; this is an uncontroversial proposition of law.

Justice Sharma found that Ms. Reid’s intention was relevant to analysing the Animal Control Bylaw because of how it was organized based on humans’ interactions with animals for commercial or agricultural purposes, Ms. Reid’s own evidence that she interacted with her guinea fowl for a non-commercial or agricultural purpose, and the City providing no evidence to rebut the “guinea fowl-human interaction” as presented by Ms. Reid (R v Reid, 2024 BCSC 1044 at para 64):

[64]      Instead, her intent is relevant to the analysis of statutory interpretation in light of:

a)   section 7.2 being organized by how humans interact with the animal—namely, for commercial or agricultural purposes;

b)   Ms. Reid providing evidence on how she interacts with the animals;

c)   Ms. Reid providing evidence on human-guinea fowl interaction more generally including cultural significance and the keeping of the birds as pets; and

d)   the City providing no evidence on how guinea fowl-human interaction is to be understood.

In the end, Justice Sharma found Ms. Reid raised an ambiguity about the Animal Control Bylaw’s application and the City simply failed to discharge its onus as the prosecutor to resolve the ambiguity in the City’s favour. Justice Sharma found no error in Judicial Justice Mahkdoom’s use of Ms. Reid’s intention on this issue. In the end, the appeal was dismissed in Ms. Reid’s favour.

This case raises a truly fascinating question about the permissible use of an accused’s intent when interpreting a strict liability offence. It is not uncommon for questions of an accused’s intention to be dismissed offhandedly or otherwise completely overlooked when prosecuting strict liability offences. Moving forward, it would be wise to keep these decisions in mind when faced with a statutory ambiguity of a strict liability offence, because the accused’s intention just may give rise to a doubt that operating bylaw actually applies to their actions.

The question of whether or not this exercise is essentially a finding that the accused did not intend to commit the strict liability offence will hopefully be explored more in subsequent litigation or academic publications.