ONTARIO COURT OF JUSTICE

(East Region)

CITATION: R. v. Novotny, 2019 ONCJ 988

DATE: 2019 02 01

COURT FILE No.: 3560-999-17-0034-00

BETWEEN:

HER MAJESTY THE QUEEN

Prosecutor

-and-

GEORGE NOVOTNY

Defendant

Ontario Court of Justice

Picton, Ontario

C. Peltzer J.P.

Heard: October 11^th, 12^th, 22^nd, 23^rd, 26^th, 2018

Decision: February 1^st, 2019

Counsel:

K. Henderson, for the Crown.

George Novotny, Self-represented.

Legislation:

Public Land Act, 1997, R.S.O. 1990, Chapter P.43.

Activities on Public Lands and Shore Lands - Work Permits and Exemptions

Ontario Regulation 239/13 s.2(1) para 3 and 4.

Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 47(3)

Crown Witnesses:

Jeff Leavitt (MNRF)

Brad McNevin (Quinte Conservation)

Chris Bassett

James Fannon

Dr. William Glass (DFO)

Patrick Soulliere (MNRF)

Defence Witnesses:

Les Baraz

George Novotny

Milo Sturm (P. Eng)

Decision of the Court

1. C. Peltzer J.P.:-- The following are the reasons for my decision at trial.

(A) Background

2. George Novotny, the Defendant, wanted to improve his waterfront to minimize erosion and to improve the safety and use of it by family and friends.

3. Mr. Novotny drafted a plan for Quinte Conservation to review in mid 2016.

4. After a site visit, Mr. McNevin from QC accepted that the alternative plan using a 4:1 slope over part of the waterfront was acceptable and ultimately a QC permit was issued for part of the lands in question.

5. The waterfront work started in the late fall of 2016 and continued into 2017 after numerous delays.

6. The alterations performed by Mr. Novotny extended beyond the scope of the permit to include something less than the 4:1 slope which was required along part of the lands and a stark 1:1 armour stone retaining wall which was not part of the original QC permit.

7. Also, a significant portion of these alterations occurred on shore lands which are seasonally inundated with water, which would necessitate a further permit pursuant to the Public Lands Act, which had not been applied for in December 2016.

8. Mr. McNevin attended the property on the 9^th and 12^th of December 2016 and upon observing the work in progress ordered Novotny to stop his work and required him to obtain the necessary permits through the MNRF before proceeding further.

9. Notwithstanding this direction, Mr. Novotny continued his work despite the order to cease activities along the waterfront and shore lands.

10. There was significant flooding in the spring of 2017 which affected this property and created concerns among landowners regarding erosion along Weller’s Bay.

11. A remediation plan was presented to Mr. Novotny which has to date been ignored as being unnecessary, overreaching, and punitive.

12. Mr. Novotny engaged the services of coastal engineering experts who have concluded that the reconstructed waterfront is a better habitat for aquatic life than previously and therefore any remediation and/or prosecution is unwarranted.

13. I must remind the parties that the issues I must address related to Mr. Novotny’s actions leading up to the end of December 2016, as they relate to his activities on shorelands on his property.

14. In this decision I am not acting as an arbiter for whether or not a remediation plan is reasonable, or whether the aquatic habitat has markedly improved. These issues can be addressed in a different forum at a different time, as my authority only relates to the allegations arising in the Public Lands Act before the court today.

(B) Issues

15. The issues to be addressed in my decision are as follows:

1. Were the Defendant’s statements voluntary?

2. Any agreed statement of facts or concessions?

3. Summary of the relevant evidence being relied upon?

4. Did filling and/or dredging occur on the shore lands in question?

5. Was a permit required before filling and dredging?

6. Has the exemption under s.47(3) POA been proven?

7. Defences available to the defendant.

(C) Issues

1. Were the Defendants statements to those in authority voluntary?

16. George Novotny engaged with QC and interacted with Officers and Employees from MNRF and DFO on numerous occasions, in-person and via email.

17. Having heard the evidence from Mr. Novotny and those witnesses who occupied positions of authority, I find that Mr. Novotny’s statements, both written and verbal, were voluntary beyond a reasonable doubt since:

a. There is no evidence of threats or inducements having been made; and

b. Although some discussions may have been adversarial in nature, there is no evidence that Mr. Novotny was intimidated or coerced into making statements to anyone at any time.

18. Therefore, any statements made by Mr. Novotny to those in authority are voluntary and can be admitted at trial where no other rules against hearsay limit their admissibility.

2. Any agreed statement so of facts or concessions?

19. The parties agreed to and I accept the following as facts in this case, as reflected in Exhibit 1:

a. That the 76 Novotny Court property is owned by George Novotny;

b. That this property is located in Prince Edward County;

c. That Dibbits Excavating delivered aggregate and stone to the property to be used along the waterfront, including the shorelands;

d. That this work was done by, or at the direction of, Mr. Novotny; and

e. That unused materials remain at the property as it is still a work in progress.

3. Summary of the relevant evidence relied on.

20. At this point I will also summarize the relevant portions of the witness’s testimony that I am relying on and why.

Officer Fabian

21. I accept the following evidence from Officer Fabian:

a. that no MNRF permit was applied for prior to December 2016;

b. that during his site visit on 26 March 2017 he observed:

i. that the water was at/near its seasonal low from December;

ii. that this water level should continue to rise until June

iii. that the work completed was on shore lands and therefore two Crown permits would be required:

a. one for dredging: and

b. one for filling

iv. that the flag stones appeared to be a 1:2- 1:3 slope, not 1:4;

v. that during a conversation with Mr. Novotny on 18 April 2017, Mr. Novotny told him that:

a. he had removed materials/stones and had placed other stone along the shoreline;

b. that he had not applied for a MNRF permit for shore land work as he did not think one was required; and

c. that he could not fulfill the 4:1 slope requirement as there was not enough natural stone on site to complete the task.

22. I accept the evidence from Officer Fabian as it is internally consistent and is corroborated in significant ways by the testimony of other witnesses with few exceptions.

Mr. Brad McNevin

23. I accept the following evidence from Mr. McNevin:

a. That he was a permit plan reviewing officer at the time of the issues in 2016/2017;

b. That he met with and reviewed Mr. Novotny’s application for a QC permit;

c. That he rejected the 1:1 armour stone plan and only authorized limited grading work along the shore, which was only to include pre-existing materials found on-site;

d. That the grading had to be above the water- pulling material back into the property;

e. That his office had no jurisdiction to issue permits below the waterline or onto shore lands;

f. That the permit he issued advised that additional approvals may be required of the applicant (see Ex 8);

g. That on the 9^th of December 2016 while on site:

i. He observed a backhoe grading and pushing fill along the shoreline;

ii. That there were two men working there that day who refused to identify themselves to him;

iii. That he observed some rock being pushed into the water;

iv. That he advised Mr. Novotny to stop working as the work did not comply with his permit and also triggered the need to advise MNR as work was being done on the shore lands;

v. That Mr. Novotny refused to stop working, and advised that it would look much better in a couple of days

vi. That Mr. Novotny, and his workers, continued to work after being told to stop as it was not permitted or authorized;

h. That he returned to the property on 12 December 2016 and made the following observations:

i. He observed a man on a Kubota working; placing rocks and fill at top of the shoreline;

ii. broken and disturbed ice along the waterline;

iii. apparent tire marks up to the shoreline in places;

iv. a pile of boulders was observed back from the shore that were not there before, believing them to be some of the same boulders observed along the shore from his visit in August; and

v. he also noted that the water level was lower now than it was in Aug, and there was still rock in the water even with the lower water level.

i. That Mr. McNevin returned to the property on 9 January 2017 to see if the work had in fact stopped. On this day he observed that:

i. More work along the waterfront had been done since his last visit on 12 December 2016; and

ii. That his stop work notice from 20 December 2016 had not been complied with, which is consistent with the Defendant’s assertions that he would continue to work

24. I accept the evidence from Mr. McNevin as it is also internally consistent and is corroborated in significant ways by the testimony of other witnesses with few exceptions.

Dr. William Glass (Biologist with DFO)

25. I accept the following evidence from Dr. William Glass, which relate to his observations during his site visit on 23 March 2017. He observed that:

a. Some of the flagstones extended below the waterline;

b. The flagstones had gravel and pebbles placed between them as fill;

c. Some aquatic vegetation appeared to be crushed beneath the armour stone;

d. Although his focus is on the 80% HWM of 75.3m, some of this rock was placed below this level, bringing it into his jurisdiction for review;

e. He noted that some of the fill material was below the waterline; and

f. The boulders located back from the waterline had scrapes and scratches on them and appeared to have been moved recently as the marks had not weathered nor had any vegetation grown around them.

26. Dr. Glass also advised that:

a. no permit had been applied for in relation to the work done below the waterline (being below 75.3m HWM);

b. that the work he observed would not have been permitted by him given the location of the stones in the water and his concern about loss of habitat for the endangered species of Pugnose and Bridle Shiner fish that frequent that area of Weller’s Bay; and

c. that the DFO does not forward projects to Quinte Conservation, and visa versa, as they are completely separate agencies with differing processes and concerns.

27. I accept the evidence from Dr. Glass as his evidence was also internally consistent and was corroborated in significant ways by the testimony of other witnesses with few exceptions.

Patrick Soulliere (MNRF Lands and Water Specialist)

28. I accept the following evidence from Mr. Patrick Soulliere, which relate to his observations during his site visit on 23 March 2017. He observed that:

a. The dredging and filling would have required a permit from the MNRF given that the work area included shore lands;

b. That placed/fitted rocks were located below the waterline;

c. He took pictures corroborating his observations (see Ex 16-6,7,8)

29. He also confirmed that:

a. No MNRF permit had been sought or issued for the property before the work had commenced, including during the month of December 2016;

b. He received an application on 13 March 2017, for an MNRF permit from Mr. Novotny, where in the words of the Defendant “to work on the shore lands” (See Ex 16-4), which confirms that:

i. no permit existed prior; and

ii. that the Defendant knew the area in question was shoreland

c. This application was not approved by his office as it did not meet their requirements; and

d. He speculated that Mr. Murphy’s comments at the AGM in August 2017 about “no permit being required if one was not working in the water” were in response to the flooding events of 2017, and were not designed to speak on behalf of any other agency; as he had no authority to do so;

30. I accept the evidence from Mr. Soulliere as his evidence was also internally consistent and was corroborated in significant ways by the testimony of other witnesses with few exceptions.

Les Baraz (Neighbour of Defendant)

31. The evidence from Mr. Les Baraz differed from the previous witnesses, as his evidence shifted between his examination-in-chief and cross-examination.

32. In-chief, he asserted that he had made no observations of work being performed in December 2016, but he was certain that the work done was an overall improvement to the waterfront and would make it safer for his family to access in the future.

33. In cross-examination, Mr. Baraz changed his evidence by agreeing with the assertions of the prosecutor that:

a. He actually observed some of the work being done;

b. That he saw some of the rock in the water;

c. But that overall, he felt there was not harm to the environment and that the work was a net improvement to the waterfront.

34. Given the shifting nature of Mr. Baraz’s evidence, and the exculpatory nature of his letter submitted in favour of the Defendant (see Ex 19) I have credibility concerns with his testimony and have given it reduced weight in the areas where his evidence changed.

George Novotny (The Defendant)

35. The evidence from Mr. George Novotny differs from the other witnesses in that much of his evidence was meant to be exculpatory in nature; some of which I accept, and some of which I have issues with.

36. The following is a summary of his evidence. I will indicate where are I am in agreement or disagreement with as it is summarized.

37. I fully accept that:

a. The Defendant is a professional engineer with 26 years of experience in his field.

b. That he was part of the team who installed underground power cabling from the mainland to Prince Edward County for Ontario Hydro;

c. That he has presented papers at conferences around the world relating to his knowledge and experience with submarine cabling;

d. that the defendant is a particularly experienced and sophisticated individual with unique qualifications and experience.

e. That he attended an AGM on August 12^th, 2017, where Mr. Murphy, of QC, made a statement to the effect that: “if you are not working in the water you do not need a permit” and that it [quote] “re-enforced my belief that no MNRF permit was required if the shore was dry”.

i. Which may have been an honestly held belief but was patently incorrect as will be discussed later.

f. That his intentions with the project were to improve his shoreline, making it safer for family and friends to use, and to protect it from the erosive effects of wind, waves, and ice.

g. I also accept his inculpatory admissions in examination-in-chief examination and cross when he stated that:

i. His backhoe operator:

a. removed rock from the shore bank;

b. placed the armour stone and flagstone in their present locations;

i. Although there is contradictory evidence whether the vehicle ever entered the water- which is not an issue for me to decide;

c. moved some of the large boulders from the shore bank to an area near the tree back from the shoreline;

ii. He added small stone between the flag stones to reinforce them against erosion;

iii. That he added flagstone to the shoreline for “temporary protection” from erosion;

iv. That he refused to stop working, and did not stop working, following the demand made by Mr. McNevin on 9^th December 2016, and his stop work notice dated 20 December 2016;

a. As he was concerned about his shoreline now being exposed to erosion in its incomplete state.

38. His evidence that I have issues with are as follows:

a. His assertion that Mr. McNevin stated to him that no MNR permit was required;

i. which was rejected by Mr. McNevin as it was against his practice and outside his authority to do so; and unlike his experience in 2012 where Mr. McNevin indicated that an MNRF permit would be required for the dredging application, his silence on the issue in the 2016 QC permit does not mean that no other permits were required, as the dredging request in 2012 was clearly within the realm of MNRF’s jurisdiction, as seeking to dredge a boat ramp is very distinct from seeking to grade above the waterline.

b. His assertion that QC only issues their permit once all other necessary permits have been obtained is incorrect and contradicted by:

i. Mr. McNevin himself, and

ii. the standard language in their permits which state that their permits do not obviate the need to obtain authorizations from other agencies.

c. His assertion to Mr. Soulliere that Mr. McNevin did not discuss the change in slope to 4:1 and if Mr. McNevin had he would have opposed it;

i. this contradicts his own evidence, and Mr. McNevin’s, that they discussed a 4:1 slope as part of his alternative plan presented to Mr. McNevin during his on-site assessment in August 2016;

d. His denial that any soil was pushed into the lake;

i. Which contradicts the observations of all Crown witnesses and the calculations of his own witness, Dr. Strum, who gave evidence about net gain and loss of water area along the waterfront;

e. His assertion that the shoreline was dry in December when the rocks were placed;

i. Whereas less than a week later they were underwater, and the seasonal water level was dropping, not rising during that period;

f. That he was not aware that he did not have enough native materials to cover and protect a 4:1 slope;

i. Whereas his experience, and his assertions on a later date to Mr. Soulliere indicate that it was obvious to him that a 4:1 slope would not work;

g. His assertion that he had to do what he did to protect the shoreline from erosion;

i. As one cannot create a situation through non-compliance (i.e. proceeding with unauthorized work) and then argue one must continue with that same work to prevent further damage;

ii. Catch-22’s do not work where there are self-inflicted.

iii. His assertions that:

a. “I did the responsible thing”; and

b. I decided to protect the environment”;

c. ring hollow as they arose as a result of non-compliance and were generated by his own decisions and actions, not as a result of QC, MNRF or DFO’s actions or approvals.

Milo Sturm (Coastal Engineer)

39. The evidence from Mr. Milo Sturm was entered as expert evidence and was limited to assisting the court on issues that I had to determine, although I appreciate that his expertise went well beyond the scope of the issues that I needed to decide in this trial.

40. I found the evidence of Mr. Sturm helpful as he had made specific calculations about elevations and the location of the shoreline that went beyond the physical observations made by the other Crown and Defence witnesses.

41. I agree with his evidence that stated:

a. There was evidence of construction activity along the shoreline;

b. That shoreline protection was necessary in this location due to wind, waves, and ice;

c. That although there was no “net fill” calculated along the shoreline;

i. In cross he agreed that there were places along the shore where there were gains and losses of water area. (See. Ex 31-7).

42. For me, any gain or loss along the waterfront is conclusive evidence that there has been either filling or dredging or both; notwithstanding Mr. Sturm’s calculation that there has been a net gain in water area. (See Ex-31-7).

43. These finding above assist me in determining the issues I must decide at trial.

4. Did filling and/or dredging occur on the shore lands in question?

a. What does dredging and filling mean under the regulations?

44. The act of dredging is defined in the relevant legislation as:

“dredge” means to remove or displace material from any shore lands, but does not

include the removal or displacement of material for the purposes of installing service

cables, heat loops or water intakes for private residences. (O. Reg 239/13, s.1).

45. The act of filling is not defined in the Regulations, but it is commonly accepted as meaning the opposite to the act of dredging; which would mean to add or place material on any shore lands.

b. What does shore lands mean under the regulations?

46. The term shore lands is important in this case and its meaning informs how I interpret the evidence.

47. Shore lands mean:

Lands covered or seasonally inundated by the water of a lake, river, stream or pond

(O. Reg 239/13 s.1)

c. Did filling and dredging occur at 76 Novotny Court on shore lands?

48. In this case, there is overwhelming evidence BRD that filling occurred on the shore lands for the following reasons:

a. The agreed statement of facts confirms this having occurred;

b. The observations and pictures taken by Mr. McNevin, Mr. Glass, Officer Fabian, Mr. Souilliere, Mr. Sturm, and the Defendant satisfy the court that:

i. guillotined stone and flagstone had been added and was sitting in the water extending below the waterline: and

ii. partially consumed piles of stone and earth on the property had a similar texture and consistency to the materials used on the shore lands between the flagstones.

a. see Exhibits 9, 10 and 12;

iii. workers were observed moving material around on site, including in the shore lands;

iv. stone and material observed by Mr. McNevin on location was not present during his initial site visit in August 2016;

49. In this case the evidence for dredging is a little more nuanced than that of filling.

50. As dredging is an act of removing or displacing material on shore lands, I am satisfied BRD that dredging did occur on these shore lands for the following reasons:

a. Mr. McNevin stated that many of the boulders observed during his site visit appeared to have been removed and placed near a tree further back from the shoreline, as none of the boulders occupied the area that was the subject matter of the QC permit any longer;

b. Officer Fabian and Mr. McNevin both observed that the shoreline had been pulled back in areas and sloped steeper that 4:1, with the new slope continuing below the water line to the base of the flag stone;

c. That the guillotined stone is perfectly leveled, which leads one to strongly infer that the base, which happens to be sitting below water, had to be levelled prior to the placement of the stone, which necessarily entails adding and/or removing soil and rock to level the base; and

d. Ex 31-2- site plan of Mr. Sturm, shows stone slabs and guillotined stone installed below the DHWL, therefore they were submerged in the water for at least part of the year;

e. Ex 31-7 from Mr. Sturm show both gains and losses in “water area” along the waterfront. These gains and losses are a direct result of the changes made along the waterfront which occurred as a result of dredging (which creates a gain) and filling (which creates a loss).

f. The letter evidence from Mr. Baraz supports the position that stones and slabs were repositioned along the shoreline in December 2016 which provided safer access to the waterfront (Ex 19)

51. Given my findings above, I am satisfied beyond a reasonable doubt that Mr. Novotny dredged and filled within the shore lands on his property at 76 Novotny Court during the month of December 2016, and most likely before and after these dates as well.

5. Was a permit required before filling and/or dredging?

52. S.2(1) of O.Reg 239/13 states that:

No person shall carry out any of the following activities except under the authority

of and in accordance with the terms and conditions of a work permit that authorizes the activity:

3 Dredge shore lands

4 Fill shore lands

53. S. 1 of O.Reg 239/13 states that a work permit means:

a work permit issued under the Act (being the Public Lands Act and Regs)

54. This permit is different from the QC permit issued under the Conservation Authorities Act R.S.O. 1990 s.28(1).

55. Given that the shore lands on 76 Novotny court were clearly seasonally inundated with water from Weller’s Bay, these lands clearly fell within the meaning of the Public Lands Act and Regulations and therefore required a permit prior to the dredging or filling of the shore lands.

56. Given my findings above I am satisfied BRD that the prohibited acts of filling and dredging occurred on shore lands at 76 Novotny Court, by or at the direction of George Novotny, during the month of December 2016, as prohibited by the Public Lands Act Regs 239/13 s. 2(1) para 3 and 4.

57. An R. v. W.D. assessment would not change my determination on the prohibited acts as the evidence of the defendant was not exculpatory in regards to the prohibited acts in any credible way other than to assert that there was no evidence before the court of any filling or dredging; which is patently incorrect given the credible nature of the remaining witnesses, both for the prosecution and defence.

58. The essence of Mr. Novotny’s assertions relate more to the possible defences available to him and not to the prohibited act of filling or dredging.

6. Has the exemption under s.47(3) POA been proven?

59. In cases where there is a prohibition on certain acts being performed without being authorized the onus is initially on the Crown to prove the prohibited act beyond a reasonable doubt; in this case the dredging and/or filling of shore lands that are subject to the Public lands Act and Regulations.

60. Once this prohibited act has been established beyond a reasonable doubt, the onus shifts to the defendant to prove on a balance of probabilities that an authorization, exception, exemption, or qualification operated in his favour.

61. As the Provincial Offences Act states:

s.47. (3) The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption or qualification does not operate in favour of the defendant, whether or not it is set out in the information.

62. Out of fairness to Mr. Novotny, a QC permit was obtained relating to some of the area above the shore lands (see Ex 8), but the work done along the shore area clearly went beyond the scope of the QC permit both in its location and in its manner.

63. For example. The QC permit only authorized work to be completed along part of the waterfront, not the whole, and it specifically rejected the use of a 1:1 retaining wall with guillotined stone or the addition of any new stone or fill. Essentially none of the terms of the QC permit were followed; but that is not the issue I have to decide here today.

64. It is clear from the evidence of Officer Fabian, Mr. Soulliere, and Mr. Novotny himself, that no permit under the Public Lands Act was sought or obtained prior to work commencing on the shore lands, including the work completed during the month of December 2016.

65. In support of the evidence of no permit being in existence in December 2016, the court has heard evidence that a MNRF permit was applied for on March 2017, which was ultimately not accepted given the requests therein did not meet the MNRF’s requirements.

66. Given my findings above, the requirements of s.47(3) cannot be met given that the evidence at trial clearly shows that there was no Public Lands Act permit in existence at the time of the dredging and filling on the shore lands.

7. Defences to the allegations

67. Being a strict liability offence, several defences are available to the Defendant.

68. Regarding the defence of Due Diligence:

a. The All Reasonable Care branch of the defence of Due diligence was not made out on a balance of probabilities as:

i. there was little to no evidence that the Defendant took “all reasonable care” to avoid the prohibited act (being filling or dredging without a permit) as:

a. he continued to fill and dredge, even after being informed by QC to stop as his actions were not authorized or within the scope of their permit.

b. If anything, the evidence is to the contrary, that the defendant double-down on his effort to complete the waterfront under the guise of protecting it from erosion given its present vulnerable state due to his unauthorised filling and dredging.

b. The Reasonable Mistake of Fact branch of the defence of due diligence can also apply when a Defendant reasonably believes in a mistaken set of facts that, if true, would render the act or omission innocent.

i. In this case a Reasonable Mistake of Fact Defence has been not made out on a balance of probabilities for the following reasons:

a. the facts that the Defendant relied on did not render their acts or omissions innocent;

b. he did not rely on erroneous advice/statements from Mr. Murphy, a representative of QC who told a group at a town hall event that no permit was required if you were not working in the water- as this statement was not made until August of 2017, and did not inform Mr. Novotny in any way during the month of December 2016; and

c. even if this statement was relied on prior to the offence taking place, this incorrect advice and assumptions on his part are not objectively reasonable.

69. Regarding the Defence of Officially Induced Error of Law I must go into a little more detailed analysis, as this is the one area where there was a defence with some potential merit:

a. As is often stated: Ignorance of the law is not a defence to a charge.¹ But:

b. Officially Induced Error of Law, or mixed fact and law is an exception to the general rule that ignorance of the law is no excuse for committing an offence.

c. This defence recognizes that it is reasonable for someone to assume he or she knows the law after consulting a representative of the state acting in a capacity which makes the person an expert on that subject.²

d. The elements required to establish Officially Induced Error are:

i. an error of law or of mixed law and fact was made

ii. the defendant considered the legal consequences of his or her actions

iii. the advice was obtained from an appropriate official

iv. the advice was reasonable

v. the advice was wrong and

vi. the defendant relied on the advice in committing the act.³

e. It is necessary to establish the objective reasonableness not only of the advice, but also of the reliance on the advice.⁴

f. Factors to be considered in determining this include:

i. the efforts made to obtain information;

ii. the clarity or obscurity of the law

iii. the position and role of the official that gave the advice and

iv. the clarity, definitiveness and reasonableness of the advice.⁵

g. It is not sufficient in such cases to conduct a purely subjective analysis of the reasonableness of the information. This aspect of the question must be considered from the perspective of a reasonable person in a situation similar to that of the defendant.⁶

h. The defence of officially induced error must be proven by the defendant, on a balance of probabilities.⁷

i. If the defence of officially induced error is made out, the procedure is to find the defendant guilty of the offence charged but enter a stay of proceedings rather than a conviction. An acquittal is not entered if this defence succeeds.⁸

70. Below are my findings relating to the six factors of the defence of Officially Induced Error:

a. Was there an error of law or of mixed law and fact?

i. Yes, there was an error of mixed fact and law in this case:

a. There was an error of law by the Defendant regarding his belief in the existence of an authorization to commence his work on the shore lands; and

b. an error of fact in his belief in the existence of a permit/authorization to commence work.

b. Had the Defendant considered the legal consequences of his actions?

i. Yes;

ii. he took his actions based on his assumptions from his experiences in obtained a permit in 2012 where he was cautioned that he required an additional permit through MNRF, with the absence of such a caution in his 2016 permit, for him, being tantamount to an authorization to proceed; and

iii. the Defendant being particularly sophisticated on issues of regulations given his work experience, he would have turned his mind to the consequences of his actions.

c. Was the advice obtained from an appropriate official?

i. No;

ii. there is no evidence that advice was sought from the appropriate official regarding his stated beliefs relating to what his permit authorized; and

iii. he did not receive advice from an appropriate official, he made assumptions based on his past experience, and his reading online of apparent collaboration between agencies, and then assuming that the communicate with one another prior to issuing permits.

d. Was the advice reasonable?

i. No.

ii. There was no advice provided, only assumptions as stated previously.

e. Was the advice/assumption wrong?

i. Yes, in that his assumptions were incorrect, even if they were honestly held.

f. Did the Defendant rely on the advice in committing the act?

i. Initially yes, according to his own evidence he relied on his beliefs in making the decisions he made up to December 9^th, 2016.

71. Truth be told, if the Defendant had ceased operations on the shore lands on December 9^th, 2016 after being confronted by Mr. McNevin, this defence would have had much more traction.

72. The problem is that any misconceptions or false assumptions had to have evaporated once Mr. McNevin clearly advised him that his actions were not authorized.

73. The fact that he continued to alter the shore lands after this conversation with Mr. McNevin shows that he, at least at that point, clearly knew he was not authorized and therefore made the application of any potential defence of officially induced error of law moot.

74. Given the above, I am of the view that the six requirements of Officially Induced Error of Law have not been made-out on a balance of probabilities.

(D) Decision

75. Given my reasoning above, I am satisfied beyond a reasonable doubt that the Defendant both dredged and filled shore lands on his property without a permit during December 2016 as indicated in the information.

76. With these finding of guilt, convictions will be entered.

Released: February 1^st, 2019.

Justice of the Peace C. Peltzer

Footnotes

1. 1s. 81 Provincial Offences Act R.S.O. 1990, c.P.33 [hereinafter POA]; Molis v. The Queen, 1980 CanLII 8 (SCC), [1980] 2 S.C.R. 356 (S.C.C.).
2. 2R. v. Jorgensen (1995), 1995 CanLII 85 (SCC), 102 C.C.C. (3d) 97 (S.C.C.).
3. 3Lévis (City) v. Tétreault, [2006] S.C.J. No. 12, 2006 SCC 12 (S.C.C.).
4. 4Ibid, citing R. v. Cancoil Thermal Corp., (1986), 1986 CanLII 154 (ON CA), 27 C.C.C. (3d) 295 (Ont. C.A.) and Maitland Valley Cons. Auth. v. Cranbrook Swine Inc., 2003 CanLII 41182 (ON CA), [2003] O.J. No. 1433 (Ont. C.A.) [hereinafter Cranbrook Swine Inc.].
5. 5Ibid, citing R. v. Cancoil Thermal Corp. (1986), 1986 CanLII 154 (ON CA), 27 C.C.C. (3d) 295 (Ont. C.A.).
6. 6Ibid.
7. 7R. v. Ralph, 2002 CanLII 54054 (NL SC), [2002] N.J. No. 322 (Nfld. S.C.) [hereinafter Ralph].
8. 8Cranbrook Swine Inc.; Ralph.