Brian D. Wilkie

The Crown sought leave to appeal a decision of the Ontario Court of Justice that overturned the respondent's conviction under the Endangered Species Act for damaging Blanding's turtle habitat.

The appeal judge had entered an acquittal after finding the circumstantial evidence of turtle sightings from prior and subsequent years insufficient to prove the land was habitat at the time of the offence.

The Court of Appeal held that while the appeal judge's conclusion raised a question of law alone, the Crown failed to demonstrate that granting leave was essential in the public interest or for the due administration of justice.

The decision below was highly fact-specific and unlikely to establish a binding precedent requiring direct evidence of habitat use.

Leave to appeal was denied, and the respondent's request for costs was dismissed.

Lesley Tokar, facing charges under the Fish and Wildlife Conservation Act, brought a motion for a common law publication ban to protect private medical information he intended to share during his trial.

The Crown opposed the motion.

The court applied the three-part Sherman test, which requires demonstrating a serious risk to an important public interest, necessity of the order, and proportionality.

The court found that Mr. Tokar failed to establish a serious risk, as his medical information was not central or necessarily relevant to the strict liability offences charged, and his claims of professional repercussions lacked specific evidence.

The motion for a publication ban was denied.

The Crown appealed the acquittal of the respondent on a charge of unlawfully depositing material on public lands contrary to section 27(1)(a) of the Public Lands Act.

The respondent, a miner who owned mining rights to a parcel of land, had deposited debris on a Crown land trail (CL 16773) that crossed his property.

The trial justice acquitted the respondent, finding that the Crown had not proven the trail was Crown land and that the Mining Act provided a legal exception to the Public Lands Act.

The appellate court found palpable and overriding errors in the trial justice's factual findings and rejected the legal argument that mining rights exempted the respondent from the Public Lands Act.

The appeal was allowed, the acquittal was quashed, and a conviction was substituted with a $500 fine imposed.

Appeals from convictions and sentences imposed on a corporation and individual for offences related to unauthorized access to Crown land and trespass for fishing purposes.

The appellants organized a public protest and removed trees that had been felled by the Ministry of Natural Resources to restrict access to Oswald Lake.

The court upheld the convictions, finding that the Ministry lawfully restricted access under the Public Lands Act and that the appellants were parties to the offences committed by others.

The court also upheld the sentence, finding no error in principle regarding the failure to inquire into financial ability to pay and determining the fine was not demonstrably unfit given the circumstances of organized civil disobedience.

The applicants, who were charged with various provincial hunting and fishing offences, brought an application in the Superior Court for a writ of prohibition to stay the proceedings in the Ontario Court of Justice and for an order of mandamus to compel the Crown to consult and accommodate their asserted aboriginal title.

The Superior Court dismissed the applications, holding that constitutional and aboriginal rights defences must be raised in the court having jurisdiction over the charges (the Ontario Court of Justice).

The court also found no basis for mandamus as no demand had been refused.

The appellants were charged with a hunting offence under the Provincial Offences Act for allegedly harvesting a moose out of season.

At trial, they brought a Charter application alleging a violation of section 15 of the Canadian Charter of Rights and Freedoms and seeking advanced funding for defence witnesses and counsel fees under section 24(1).

The trial court dismissed the Charter application.

The appellants appealed the dismissal.

The appeal court dismissed the appeal for lack of jurisdiction, finding that the dismissal of a pre-trial Charter motion is not a final order appealable under section 116 of the Provincial Offences Act, and that advanced funding does not constitute "costs" within the meaning of section 116(1)(e).

The respondent contractor was charged with operating a pit without a licence under the Aggregate Resources Act after excavating sand from a farmer's land to level knolls and improve the farmland.

The justice of the peace and the summary conviction appeal judge acquitted the respondent, finding the Act was not intended to regulate farm improvement projects.

The Court of Appeal allowed the Crown's appeal, holding that the excavation fell squarely within the statutory definition of a pit, the Act contains no exemption for farm betterment projects, and the licensing requirement applies to the on-site operator.

The defendant was charged with unlawfully hunting big game (moose) without a licence contrary to section 6(1)(a) of the Fish and Wildlife Conservation Act, 1997.

The defendant admitted to shooting a cow moose without a licence but claimed he had constitutional rights to hunt as a Métis person under section 35 of the Constitution Act, 1982, and that his section 15 Charter rights to equality had been violated.

The court found that the defendant failed to establish the existence of a historic Métis community in the area where he was hunting as of the time of effective European control (1850), and that his ancestors did not arrive in the region until after that date.

The court also found that the defendant's section 15 claim was directed at the Métis Nation of Ontario, which was not a party to the proceedings.

The defendant was found guilty.

The defendant corporation was charged with unlawfully disposing of oil field fluids in violation of the Oil, Gas and Salt Resources Act and related regulations.

The Crown sought to admit a Certificate of Analysis from Maxxam Analytics containing chemical analysis results of soil and vegetation samples collected from the defendant's well site.

The defendant objected to admission of the document as hearsay.

The court conducted a voir dire to determine admissibility under the business records exception to the hearsay rule under section 35 of the Ontario Evidence Act.

The court found that the Certificate of Analysis met all requirements for admission as a business record and admitted it into evidence.

The appellants sought a writ of prohibition to prevent the Ontario Court of Justice from hearing charges against them under the Fish and Wildlife Conservation Act, arguing that the Act was ultra vires, that their claims arose under federal common law, that the prosecution was precluded by inter-jurisdictional immunity, and that the court was institutionally biased.

The application judge dismissed the application, save for prohibiting a specific justice of the peace from conducting the trial.

The Court of Appeal dismissed the appeal, affirming that constitutional and aboriginal rights claims must be raised as defences in the court having jurisdiction over the charges, and that there was no merit to the claim of institutional bias.

The Aboriginal appellants were convicted of night hunting and discharging a firearm on a road after shooting at a moose decoy from a gravel logging road.

They appealed, arguing they were exercising their hunting rights under Treaty No. 9.

The Court of Appeal dismissed the appeal, finding that the road was a 'right of way for public vehicular traffic' and constituted land 'taken up' for forestry and public use, making it visibly incompatible with hunting.

Therefore, the treaty right did not protect their actions on that specific road.

The applicant, a status Indian and member of Couchiching First Nation, sought leave to appeal his convictions under the Public Lands Act for building a cabin without a work permit and contrary to a stop work order.

He argued the cabin was built in furtherance of his treaty right to hunt and fish, challenged the constitutionality of the Act, and alleged a reasonable apprehension of bias due to the justice of the peace's relationship with a Ministry of Natural Resources manager.

The Court of Appeal dismissed the motion for leave, finding that the determination of treaty rights is a question of law, the applicant failed to prove the cabin was reasonably incidental to his rights, he could not challenge the regulatory regime without establishing a right, and the high threshold for disqualifying bias was not met.

The appellant, a member of the Aroland First Nation (Treaty 9), was charged with hunting moose without a licence in Treaty 3 territory.

He argued he had a constitutionally protected right to hunt there because he was married to a member of the Lac Seul First Nation (Treaty 3) and had been accepted into that community.

The justice of the peace acquitted him, but the appeal judge entered a conviction.

The Court of Appeal allowed the appeal and restored the acquittal, finding that the appellant was entitled to shelter under Treaty 3 rights as he was hunting in accordance with Ojibway custom and had been accepted by the Treaty 3 community to share in their harvest.

The appellants, members of the Walpole Island First Nation, were convicted of hunting without a licence in the Robinson-Superior Treaty territory.

They argued they were sheltering under the treaty rights of the Michipicoten First Nation, an Ojibway community that is a signatory to the treaty.

The Court of Appeal held that while Aboriginal persons can shelter under another First Nation's treaty rights if supported by custom, the appellants failed to establish they had obtained the necessary communal consent in advance to share in the harvesting resource.

The appeal was dismissed.