M. Coopersmith

This is a costs decision following the quashing of a provincial offence charge against the defendant for failing to obtain a building permit for construction to its hangar at the Oshawa Airport complex.

The court found that the constitutional doctrine of interjurisdictional immunity applied, rendering the charge void ab initio.

The court subsequently determined that the City of Oshawa, as prosecutor, had displayed marked and unacceptable departure from reasonable prosecution standards, warranting a costs award.

The court awarded costs on a substantial indemnity basis, finding the prosecutor had acted in self-serving interests rather than the public interest, had failed to disclose relevant materials, had breached prosecutorial responsibilities by using settlement discussions against the defendant, and had proceeded despite clear jurisprudence establishing federal exclusive jurisdiction over aeronautics.

Two defendants were charged with operating motor vehicles on Highway 401 while performing a stunt (speeding 80 km/h over the limit), racing, and careless driving.

The Crown's evidence established that the defendants were paced by a police officer at 180 km/h in a 100 km/h zone.

The defendants claimed they were travelling at 120-140 km/h and invoked the defence of necessity, arguing they accelerated to create distance from a vehicle following closely behind.

The court found the Crown's evidence credible and reliable, rejected the necessity defence as failing the modified objective test, and applied the Kienapple principle to stay the careless driving and racing charges, resulting in convictions for performing a stunt.

The defendant corporation was charged with failing to obtain a building permit for modifications to a hangar at Oshawa Airport, contrary to the Building Code Act, 1992.

The defendant raised a constitutional challenge based on federal exclusive jurisdiction over aeronautics under the doctrine of interjurisdictional immunity.

The court found the Building Code Act provisions invalid as applied to the defendant's hangar and dismissed the charge.

Subsequently, the court awarded costs against the City of Oshawa as prosecutor, finding the prosecution exhibited flagrant departure from reasonable standards, including tunnel vision, witness bias, failure to disclose relevant documents, and refusal to accept established jurisprudence on federal aeronautics jurisdiction.

The defendant was charged with careless driving contrary to section 130 of the Highway Traffic Act following a motor vehicle collision at a four-way stop intersection.

The prosecution presented evidence from two independent witnesses and a police officer.

The defendant testified in his own defence, represented by his father.

The court found that the defendant's conduct—including stopping abruptly in the intersection, shouting profanities at other vehicles, and accelerating aggressively toward another vehicle—constituted careless driving.

The defendant's testimony was found to be inconsistent and unreliable, while the independent witnesses provided credible and consistent accounts of aggressive and erratic driving behaviour.

The court convicted the defendant.

The defendants, as property owners in a regulated area adjacent to Lake Simcoe, undertook development without proper authorization from the Lake Simcoe Region Conservation Authority.

Specifically, they constructed gabion basket retaining walls not in accordance with the approved permit (which specified granite boulder walls) and built a two-storey shed without obtaining any permit.

The court found the defendants guilty of violating Ontario Regulation 179/06 under the Conservation Authorities Act.

The defendants' defences of officially induced error of law and due diligence both failed on the evidence.

A corporation charged with failing to obtain a building permit under the Ontario Building Code Act, 1992 for modifications to an aircraft hangar at the Oshawa Airport successfully defended the charge on constitutional grounds.

The court found that the hangar, located within the airport complex and used for aviation purposes, falls within the exclusive federal jurisdiction over aeronautics.

The doctrine of interjurisdictional immunity applied, rendering the provincial building code requirement inapplicable to the federally regulated facility.

The court also dismissed a section 11(b) Charter application regarding trial delay, finding the delay, though significant, was within acceptable bounds given the complexity of the constitutional issues and societal interest in the matter.

The defendants were charged with applying excessive protective elements to their residential property in violation of the City of Oshawa's Fortification By-law.

The defendants had installed eleven video surveillance cameras on their property that captured views well beyond the perimeter of their land, including neighbours' yards, side yards, front yards, and adjacent streets.

The defendants claimed the cameras were necessary for protection against break-ins, vandalism, and harassment from neighbours, and argued the by-law was unconstitutional and did not apply to private property.

The court found the defendants guilty, holding that the by-law validly applies to private property, the municipal entry and search warrant were lawful, and the surveillance system exceeded reasonable protection by intruding into neighbours' reasonable expectation of privacy.

A commercial motor vehicle operator was charged with two offences under the Highway Traffic Act: (1) driving without a currently validated permit contrary to section 7(1)(a), and (2) operating an overweight vehicle in violation of section 121(1).

The vehicle was a snow-clearing truck being transported for engine repairs outside its normal service area.

The court determined that the first charge should be stayed based on the defence of officially induced error of law, as the defendant had received erroneous advice from a Ministry of Transportation official regarding registration exemptions for snow-clearing equipment.

The second charge was dismissed because the court found the vehicle qualified for a weight exemption under section 114(3) of the HTA, as it was being operated on behalf of a municipality and was equipped with snow-clearing equipment (a salter), even though the ploughs had been temporarily removed for repairs.

The defendant was charged with driving while her driver's licence was suspended contrary to subsection 53(1) of the Highway Traffic Act.

The prosecution relied on certified documentation from the Registrar of Motor Vehicles showing the suspension was in effect on the date of the alleged offence, along with police officer testimony that the defendant was observed driving on that date.

The defence objected to the admissibility of the certified documentation on the grounds that it inferred a prior conviction without the defendant having put her character in issue, thereby contravening the Evidence Act.

The court found the documentation admissible, excluding only the phrases indicating the reason for suspension, and convicted the defendant on the basis that all elements of the offence had been proven beyond a reasonable doubt.

The defendant was charged with "Turn not in Safety" contrary to subsection 142(1) of the Highway Traffic Act following a two-vehicle collision at the intersection of King Street and Cadillac Avenue in Oshawa.

The prosecution alleged the defendant made an unsafe left turn from the wrong lane, cutting across the path of the complainant's vehicle.

The defendant testified she was in the left lane and made a proper left turn with a signal.

The court rejected the defendant's evidence as inconsistent with the probabilities, finding multiple contradictions and implausibilities in her testimony regarding her familiarity with the area, distances, and vehicle speeds.

The court accepted the complainant's evidence and found the defendant guilty of the charge.

The defendants, Paul Nolis and Cathy Nolis, were convicted of failing to maintain a minimum distance for an accessory building (shed) from the property line, contrary to the Town of Richmond Hill Zoning By-Law 128-04.

This was a subsequent conviction for the same offence.

The defendants had previously been convicted and fined $50 each but failed to bring the shed into compliance.

The shed was located only 18 inches from the neighbour's property line, in violation of the required 7.5-metre rear yard setback.

The court imposed fines of $2,000 each and a 12-month non-reporting probation order with a condition requiring compliance with zoning bylaws prior to expiration of the order or sale of the property.

Defendants were charged with failing to maintain a minimum distance for an accessory building (shed) from the property line, contrary to Town of Richmond Hill Zoning By-law 128-04, section 5.1.4(a), and the Planning Act.

The shed was located 18 inches from the rear lot line when the applicable setback requirement was significantly greater (either 4 feet under the predecessor by-law or 7.5 metres under the amended by-law).

The defendants argued the property was zoned "Residential" rather than "Urban," that they had been charged under the wrong by-law, and that they had relied on prior court proceedings and town approvals.

The court found the property was zoned "Urban," the applicable by-law was By-law 128-04, and the shed violated the setback requirements.

The court rejected defences based on res judicata, abuse of process, officially induced error, and legal non-complying use.