Court of Appeal for Ontario

Date: 2018-05-22 Docket: C58113 Judges: MacFarland, Watt and Paciocco JJ.A.

Parties

Between

Halton Region Conservation Authority Appellant (Respondent)

and

J. Michael Hanna and Susan Carol Hanna Respondents (Appellants)

Counsel

Brian H. Greenspan, Robin McKechney and Peter Hamm, for the appellants

Kenneth Jull and Jonathan Nehmetallah, for the respondent

Hearing and Release

Heard and released orally: May 17, 2018

On appeal from: The judgment of Justice Alan D. Cooper, of the Ontario Court of Justice, dated November 19, 2012, allowing a Crown appeal from the sentences imposed on January 24, 2011 by Justice of the Peace Lina M. Mills of the Ontario Court of Justice.

Reasons for Decision

1The appellants appeal, with leave of a single judge, from the decision of a judge of the Ontario Court of Justice sitting as a Provincial Offences Appeal Court (POAC) varying the sentence imposed by a justice of the peace in the Provincial Offences Court on pleas of guilty to two counts of breaching a regulation made under s. 28(1) of the Conservation Authorities Act, R.S.O. 1990, c. C.27, thereby committing an offence under s. 28(16) of that Act.

2At trial, after a contested sentencing hearing that lasted over two weeks, the presiding justice ordered that each appellant:

i. pay a fine of $5,000; and

ii. comply with the terms of a probation order for a period of two years among which was a requirement that they reconstruct a seawall on their property at their expense, by a specified date.

3The Conservation Authority appealed the sentence to the POAC. The principal ground of appeal was that the trial justice erred in failing to order the now appellants to remove, at their expense, the addition they had made to their home. As it had at trial, there unsuccessfully, the Authority sought the removal order as a term of the probation order on the basis that the now appellants' conduct amounted to a flagrant and deliberate breach of the regulation.

4The judge of the POAC allowed the appeal by the Conservation Authority, set aside the sentence imposed at trial, and ordered that the fines be remitted to the now appellants; that the probation order requiring reconstruction of the seawall remain in effect; and that the now appellants be required to remove the addition to their home at their expense before a certain date.

5In this court, the appellants seek reinstatement of the sentence imposed at trial. Reduced to its essence, they say that the judge of the POAC exceeded the scope of permissible appellate review by:

i. reversing factual findings made by the trial court in the absence of any misapprehensions of evidence or palpable and overriding errors of fact;

ii. reweighed the evidence adduced before the sentencing judge and substituted his own findings for those of the trial court; and

iii. disregarded mitigating factors relied upon by the trial court.

6The authority of the POAC on appeals from sentence under s. 122(1) of the POA is, with two exceptions not material here, identical to that in s. 687(1) of the Criminal Code. It is well established that sentences imposed by trial courts are entitled to and accorded substantial deference on appellate review. An appellate court is entitled to interfere with the sentence imposed at trial only where the trial court:

i. errs in principle;

ii. fails to consider a relevant factor; or

iii. errs in considering an aggravating or mitigating factor

that has an impact on the sentence imposed, or imposes a sentence that is demonstrably unfit.

7Critical to the Conservation Authority's request for a removal order as part of the sentencing disposition was its submission that the conduct of the appellants was a flagrant and deliberate breach of the governing Regulations. As an aggravating factor on sentence, it was incumbent on the Authority to prove this allegation on the evidence adduced at the hearing beyond a reasonable doubt. The trial court made a specific finding of fact, a finding based on the whole of the evidence adduced on the sentencing hearing, and one that involved an assessment and weighing of controverted evidence and findings of credibility, that the appellants' conduct did not constitute a flagrant and deliberate breach of the Regulations.

8The judge of the POAC found that:

i. the Conservation Authority had proven the disputed aggravating factor, that is to say, the flagrant and deliberate breach of the Regulations, beyond a reasonable doubt; and

ii. the nature of the breach warranted a removal order.

9It was not open to the judge of the POAC to simply substitute his view of the nature of the appellants' breach of the Regulation for that of the trial court.

10Findings of fact are the bedrock of sentencing proceedings. They are critical to a determination of the circumstances that may aggravate or mitigate a sentence. In many instances, as here, findings of fact that determine whether an aggravating or mitigating circumstance will have a say in the ultimate sentencing decision will be made on conflicting evidence. And findings of fact are the province of the sentencing judge who is an ear and eyewitness to the conflicting evidence. At one remove, a reviewing court is not entitled, nor should it be, to interfere with findings of fact made at trial in the absence of palpable and overriding error.

11In this case, the judge of the POAC does not identify any palpable and overriding error in the trial court's finding on the critical issue of moral blameworthiness. It follows that the appeal judge was not entitled to interfere with that finding, much less to substitute a contrary finding funded in part by impermissible speculation about one of the appellants' knowledge of applicable residential building restrictions.

12In the result, we are satisfied that the appeal judge's decision is flawed by fundamental errors and cannot stand. The appeal is allowed, the decision of the judge of the POAC is set aside and the decision of the POC restored to this extent: each appellant will pay a fine of $5,000. In light of the fresh evidence that the terms of the probation order, including reconstruction of the seawall, have been satisfied, we see no need to make any further orders.

J. MacFarland J.A.

David Watt J.A.

David M. Paciocco J.A.