ONTARIO COURT OF JUSTICE
BETWEEN:
City of Kawartha Lakes
— AND —
Daniel OSCHEFSKI
Before Justice of the Peace Joel Kulmatycki
Heard on December 2, 2024
Reasons for Judgment released on January 13, 2025
Krystin Fitzgerald counsel for the prosecution
The defendant Mr. D. Oschefski............................................................. on his own behalf
J. KULMATYCKI, J.P.:
1Mr. Daniel Mark Oschefski is charged with several offences relating to the City of Kawartha Lakes Township of Emily Comprehensive zoning By-Law 1996-30 and the City of Kawartha Lakes Access to Municipal Right of Ways By-Law 2017-151 section 2.03. The latter is count four of the Information before this Court. I have dismissed this last charge. The Prosecution has failed to establish a prima facia case on count four. I will provide reasons on counts one, two and three later in my reasons.
2The alleged offences range between the dates of August 17, 2021, and November 19, 2021.
(a) Count 1. While being the owner of the property, namely Carlton Crescent Omemee, Ontario, K0L 2W0, Roll Number 165100100802300, Legal description Concession 3, Lot 7, Plan 365, Lot 34 (the Property), allow a non permitted accessory use, mainly that of the storage and use of a trailer on a vacant property prior to establishing a permitted primary use. This is in respect to a trailer that is alleged to have been parked on the property.
(b) Count 2. While being the owner of the property did permit or allow a non-permitted use pursuant to section 67 of the Planning Act to wit, allow a non-permitted accessory structure prior to establishing a permitted primary use. This is in relation to an alleged cabin that was built on the property.
(c) Count 3. While being the owner of the property did permit or allow a non-permitted use pursuant to section 67 of the planning act, to wit, establishing an accessory structure within the required minimum water setback of 30 meters. This again is in relation to an alleged cabin that was built on the property.
3To summarize the allegations, it is said that Mr. Oschefski purchased the property sometime in 2020 with the belief that he could build a 10 foot by 10 foot cabin and not be in contravention of any laws. He further believed that he could park a camper trailer on the property.
4I am aware that this matter was pre-tried by Prestage, J.P., on at least two occasions and once more at the beginning of the trial by Leblanc, J.P. The defendant has been self-representing since the first appearance date of February 22, 2022. On April 15, 2024, some eight months ago, the trial was set to occur on December 2, 2024.
5On the day of the trial, the Court was asked to adjourn by Mr. Oschefski as he had received what he described as new disclosure one week prior. He described that it was late and he had not summonsed any witnesses for the trial date. The Court responded, siting passages from two cases, R v. Kovacs-Tatar, 2004 CanLII 42923 (ON CA), [2004] O.J. No 4756, the Ontario Court of Appeal and R. v. Ruthowsky, 2024 ONCA 432 in terms of the timeliness of disclosure. I dismissed the motion to adjourn as Ms. Fitzgerald described that the “new” disclosure was almost the same as previously disclosed material from a proposed expert witness. The “new” materials provided the same opinion but with a different expert being intended.
Commencement of the trial
6The Court provided an overview to the defendant of the trial process. Mr. Oschefski was then asked if he wished and was ready to proceed. His answer was that he was not ready as he wanted a fair trial. The Court repeated that the adjournment was denied and that the Court was proceeding. (I have provided full details at the end of my ruling as to what was described to the self-represented defendant)
7I asked Mr. Oschefski if he needed legal advice and he responded that it was not necessary. I then ordered arraignment.
8On arraignment of the first count, the defendant plead guilty with the Court immediately engaging in a “Shield’s test”. R v. Shields, [2002] O.J. NO. 4876. When asked if he was pleading guilty voluntarily, Mr. Oschefski stated that his plea was under duress. As such, the Court entered not guilty pleas on all counts as alleged. The defendant refused to engage in the process.
9The prosecutor requested that the proposed expert be permitted to remain in the Court and not be excluded. The defendant opposed this request as he wanted a fair trial. The Court made an order excluding all witnesses in favour of the self-represented defendant.
10The defendant opposed the use of notes with respect to the prosecution’s witnesses. Mr. Oschefski desired that they only testify from memory. The Court ruled that the witnesses could rely on notes made and documents used to refresh their memory. R v. Antoniak, [2007] O.J. No. 4816 para. 24
Prosecution witness – By-Law Officer Ryan Allard
11Officer Ryan Allard testified that on June 9, 2021, he attended to the vacant property later determined to be owned by the defendant, to investigate allegations of violations with respect to local By-laws. He ascertained that the owner was in fact the defendant through title searches and other documents.
12He stated that he interacted with the defendant and asked if he had building permits for what was observed as a cabin type structure on the property. He described that Mr. Oschefski became irate and armed himself with a stick. The witness called for the Ontario Provincial Police to de-escalate the situation. The OPP in fact did attend and nothing further occurred in terms of threatening behaviour.
13Several exhibits were tendered at the trial through this witness. They are listed as follows.
(a) Exhibit 1, By-Law regulations for the City of Kawartha Lakes.
(b) Exhibit 2, Township of Emily – Comprehensive Zoning By-Law.
(c) Exhibit 3, Title Search document results naming the defendant.
(d) Exhibit 4, Photographs of the “property” listed from 4a to 4bb.
(e) Exhibit 5, a Zoning Notice dated July 15, 2021, provided to the defendant which partially states the following:
(i) The Municipal Law Enforcement Office has received a complaint regarding the above-described property which is owned by you or in which you have an interest. The complaint was regarding the use of a trailer as a dwelling at the property. I have confirmed this complaint by visual inspection on June 9, 2021, where I further noted outdoor storage and accessory structures being built on the property.
(ii) The above property is zoned as Rural Residential Type 3 and Environmental Protection within the Township of Emily Zoning By-law 1996-30.
(iii) 12.1.1 states no person shall hereafter change the use of any building, structure or land or erect or use any building or structure, in a Rural Residential Type 3 Zone except for the following uses; bed and breakfast, home occupation, single detached dwelling, private cabin, vacation dwelling.
(iv) 5.1.1 states no person shall hereafter change the use of any building, structure or land or erect or use any building or structure, in an Environmental Protection Zone except for the following uses; conservation uses, bird or wildlife sanctuaries, flood and erosion control works and docks, forestry.
(v) A dwelling is described as truck campers, tourist trailers, or mobile camper trailers.
(vi) A cabin is described in part as an accessory use to a dwelling.
(vii) The notice continues and states, without establishing the primary use as listed above, the accessory use, storage and buildings would not be permitted. This notice provides until August 16, 2021, to come into compliance.
(viii) You may comply by, removing the trailer outside storage and buildings. Returning the property back to vacant status or by obtaining the necessary permissions, documents to allow for the use as listed above. If you decide to pursue this avenue you may start the process by applying to the Planning Department of the City of Kawartha Lakes for pre-consultation.
(ix) Failure to comply may result in legal action taken against you, by the City of Kawartha Lakes for non-compliance of a Notice.
(x) It continues to state that every person or persons who contravenes any of the provisions of this bylaw is guilty of an offence and on conviction is liable to a fine not exceeding $20,000 for the first conviction. For subsequent convictions, fines up to $10,000 a day may be awarded in which the contravention has continued.
(b) Exhibit 6, is an Entrance Notice dated June 30, 2021, and addressed to the defendant. It describes that no entrance to a property may be made.
(i) This relates to Count 4 of the Information which is dismissed as I stated previously.
(c) Exhibit 7, are additional photos taken on July 15, 2021, by the officer. These are listed as 7a through to 7n. They depict additional features constructed on the boardwalk.
(d) Exhibit 8, which are photos taken by the officer on September 8, 2021, which is a period beyond the Notice to comply. These photos, 8a to 8c depict the same trailer with a solar panel attached as seen in previous visits.
(e) Exhibit 9, depicts a single photo taken by the officer on November 19, 2021, from the road near the property showing the trailer in what appears to be in the same position from previous dates. In addition, there was a “For Sale” sign erected on the subject property.
14The witness described each photo in Exhibit 4 to the Court. All photos were taken on June 9,2021. I will summarize that as follows:
(a) The photos depict a camper trailer on the property along with debris that includes:
(i) Stacked tires.
(ii) Lawn mower, bicycles, doors, cut wood/tree debris.
(iii) Adjacent to the camper, a propane barbeque, coolers, and a solar panel that appears to be connected to the camper.
(b) A boardwalk path in a forested area.
(c) What can be described as long lengths of 2 by 4 boards stacked numbering approximately 35 to 40. They all appear to be newly purchased based on the colour of the wood.
(d) A stand-alone building structure on cinder blocks that is later found to be within 30 meters of a body of water. The witness stated that it was approximately 7 to 8 meters from the waterfront. This can be further described as a cabin with a main entrance door and separate sliding glass door. It is not sided but rather is plywood without paint. The officer testified that the structure was measured as follows:
(i) 146 inches wide (12 feet and 2 inches).
(ii) 191 inches deep (15.9 feet).
(iii) 15 feet to the roof peak.
15Officer Allard re-attend to the subject property and found that there had not been a change in the status of the land. He took more photos (Exhibit 7) and caused a Building Order to be affixed to the cabin (Exhibits 7d and 7e).
16On September 8, 2021, the officer attended the property to ascertain if the defendant had come into compliance. (This being a period beyond the August 16, 2021, to come into compliance)
(a) He made observations consistent with the fact that the defendant remained in non-compliance of the Order.
(b) Also observed was a “For Sale” sign on the subject property.
17On November 19, 2021, some months after the commencement of the investigation, the officer attended to the subject property and again observed the trailer and the for-sale sign. He took a single photograph that was presented as Exhibit 9. The officer stated that it was on this date, that he decided that the defendant should be charged with three Zoning offences and one for the entrance to the property not being in compliance.
18On December 6, 2021, Mr. Oschefski was served with a summons and charged accordingly. On this same date, the trailer and cabin remained.
19On November 25, 2024, Officer Allard attended to the subject property and observed that the trailer had been removed however the cabin and debris remained.
20Officer Allard further testified that he received an opinion from the previous Director of the Planning Department that there were offences with respect to zoning laws.
21In cross-examination by Mr. Oschefski, the witness remained consistent and unwavering. I make this comment, because the defendant became flustered and said that he was not getting a fair trial. At this point Mr. Oschefski stated that he needed to get legal advice. The Court remined him that he had stated at the onset that he did not require such assistance. There was a break provided for the defendant to make inquiries.
Prosecution witness – Director of Development Services (City of Kawartha Lakes) Leah Anders-Barrie
22The expert opinion of Ms. Anders-Barrie was contested by the defendant and as such, the Court entered into a “Voir Dire”.
Voir Dire
23The opinion evidence rule is a general rule of exclusion, and opinion evidence is presumptively inadmissible. A witness may not give his or her opinion on matters calling for specialized knowledge unless that witness has been deemed by the Court to be an expert.
24The leading case on the role of expert witnesses at a trial is the Supreme Court of Canada’s decision in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9. In that case, at paragraph 17, Sopinka J. set out the criteria for experts:
(a) Admission of expert evidence depends on the application of the following criteria:
(i) Relevance;
(ii) Necessity in assisting the trier of fact;
(iii) The absence of any exclusionary rule;
(iv) A properly qualified expert.
(b) Each of these factors will be considered in turn.
Relevance:
25The first criterion is relevance. Relevance is a threshold requirement for the admission of expert evidence. Not only logical relevance is required. The Court also must make an evaluation of the probative value of the evidence in comparison to its possible prejudicial impact on the trial. Ms. Fitzgerald provided the Court with Exhibit 1 in the Voir Dire which is the CV of Ms. Leah-Barrie.
26The witness testified that she is presently the Director of Development Services for the City of Kawartha Lakes and was previously the manager of the Planning Department of the same Region. She has been an expert in similar Court cases on twelve occasions. She also testified that she is familiar with the subject property and the official plans including the applicable law.
Necessity in assisting the trier of fact:
27The second criterion is necessity. On this point, one of the leading decisions is that of the Supreme Court of Canada in R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24 in which Dickson J. (as he then was) stated, at page 42:
(a) With respect to matters calling for special knowledge, an expert in the field may draw inferences and state his opinion. An expert’s function is precisely this: to provide the judge and jury with a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate.
28Also, on the point of necessity, the Supreme Court of Canada ruled in R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at paragraph 57, that necessity exists:
(a) Only when lay persons are apt to come to a wrong conclusion without expert assistance, or where access to important information will be lost unless we borrow from the learning of experts.
The absence of any exclusionary rule:
29The third criterion deals with the absence of any exclusionary rule. This includes, that the prejudicial effect of the evidence not exceed its probative value.
A properly qualified expert:
30The fourth criterion, namely that the proposed expert has been properly qualified, requires that the expert have special knowledge of the subject matter about which he or she proposes to testify. This necessitates the review of the training, accreditation, and expertise of the witness.
31There were no questions put to the witness in cross-examination by Mr. Oschefski.
32The Court determined that the witness had met the standards required under Mohan and as such, she was declared an expert witness. Mr. Oschefski decried again that he was not getting a fair trial to which the Court disagreed. The Court blended the voir dire into the trial proper.
Trial Proper continued
33The witness testified regarding the contents (or some of the contents) of Exhibit 2 in the trial, that being the Township of Emily – Comprehensive Zoning By-Law.
34She further described the role that she played in the investigation that was elaborated in viva voce evidence and within Exhibit 10, being her Review of Municipal Law Enforcement Occurrence No. ML 2020-1760.
35She testified that Mr. Oschefski had inquired with the Planning Office in June of 2021, about zoning requirements at the “property”.
36She further stated that she had telephone communication with Mr. Oschefski in February of 2024.
37Exhibit 10 provides details in terms of the law and the subject property. Some of those specifics are as follows:
(a) She confirmed that the Zoning By-law had not changed since June 18, 2021, and remained in effect. She testified that her comments relate to the existing structure situated near the shoreline characterized as a cabin given its use and description.
(b) Under the heading Evaluation, the witness stated that the land is zoned Rural Residential Type 3 which permits certain uses. She described the legal uses and the definitions of cabin, dwelling (single detached), dwelling (vacation) and dwelling (unit).
(c) In Exhibit 10 she defined a cabin as an accessory use to a dwelling unit. A dwelling unit is a primary use in the Zoning Regulation. A primary use must first exist on site to enable the lot to contain an accessory use. An accessory use is not permitted in the absence of a primary use; in the absence of a primary use, an accessory use has nothing to which it is accessory.
(d) Also in the same Exhibit, a private cabin shall be limited to a maximum floor area of 30 square meters and where permitted as an accessory use on a lot which conforms to the requirements of this By-law for lot area in frontage, will be subject to the applicable minimum, front, rear and side yard, and water setback requirements.
(e) In addressing the abutment to a body of water, the witness provided that the land abuts the Pigeon River in the Environmental Protection zone, and is subject to the following general provision:
(i) The minimum setbacks shall apply to all buildings and structures, from any class of Environmental zone, the set back shall be applicable yard requirement for the zone or 15 meters whichever is greater.
(ii) It is continued on page three of the Exhibit, that the Zoning By-law states that the 30-meter water setback is greater than the 15-meter setback provided in section 3.18.1.18 and prevails.
(f) One of her final comments is that the existing cabin is non-compliant with the Zoning By-law because it is not permitted as a standalone accessory use in the absence of a primary use, that being a dwelling unit and the structure is sited in the restricted 30 metre set back from the water.
(g) Under the heading of “Compliance” she stated that to be in compliance with the Zoning By-law the owner has the following options:
(a) Remove the structure altogether, or
(b) Move the structure into a compliant location on site and convert it into a dwelling unit as defined and in accordance with the Ontario Building Code and Kawartha Region Conservation Authority Regulations.
(c) Apply for an amendment to the Zoning By-law to permit the use and location.
38Under examination-in-chief, Ms. Anders-Barrie also testified to some key areas. She stated that a recreation trailer or mobile home is only permitted in the case of active construction with permitted use with a building permit and only for a period of nine months with certain stipulations.
39Under cross-examination by Mr. Oschefski, the witness reiterated what the definitions were of cabin, and that one could only exist if a primary dwelling existed. She further elaborated that the present laws had been in effect since 1996 when various local Council’s combined their zoning By-Laws in an effort to streamline processes.
40I believe it is important for this record to address that Mr. Oschefski once again brought up that he felt that he was not getting a fair trial. The Court replied that he had several judicial pre-trials and that the trial had been set months in advance. This behaviour continued during the examination of the witness.
Testimony of Mr. Oschefski
41The defendant described that he was excited to buy the property and said that he had called the Township to inquire about permits. He said that he was laughed at.
42He further stated that he was under the impression that he could build a structure that measured 10 feet by 10 feet. He later learned that if he built a house, he could be in compliance. He caused an environmental impact study to be completed that cost him $3800. He learned that he would need to pay $30 to 50, 000 to get permits and even with that, there was no guarantee of success. He described this as a gamble.
43The defendant began and continued to provide details of events that were outside the allegations and to have him focus, the charges were read to him by the Court.
44His evidence described that the processes in place were too hard to navigate and were mind boggling. He did testify that he believed that the driveway onto the property existed when he purchased it. (This relates to count 4 that I have dismissed)
45He described further the following:
(a) The trailer had a bathroom and is now gone from the property.
(b) The cabin is temporary and can be moved. He conceded that it is within 30 meters of the waters edge.
46Under cross-examination, the defendant stated that he had purchased the property in 2020 and was the current owner. He also stated that he had contacted the Township about the permits required to build on the land.
Submissions – Prosecutor
47I asked that the prosecutor provide submissions first to give Mr. Oschefski an opportunity to observe the fashion in which it is done and how it was important to be on point.
48Ms. Fitzgerald described that the two professional witnesses were unchallenged in their testimony. The defendant himself admitted to being the owner throughout the range of the offence dates. He admitted to building the structure too close to the water. He also confirmed that he had a camper trailer parked on the subject property.
49The expert witness provided that the By-law 1996-30 was in place at the times of the offence and were valid.
50The evidence of the defendant that he believed that the building of a structure measuring 10 feet by 10 feet is not the case and the ignorance of the law is not a defence.
51She asks me to convict on all charges as there is no reasonable doubt as to his culpability.
Defence Submissions
52Mr. Oschefski stated that because of the housing crisis it is impossible to afford what is expected of him in this situation. He complained that it was an unaffordable process for him to build a dwelling on the property at a minimum requirement of 1800 square feet.
53He purported that his property’s water was tainted by nearby cottages with septic systems.
54He blamed the Township and claimed that they were committing illegal acts against him.
WD analysis
55Considering the Supreme Court of Canada decision in WD, 1991, S.C.R. 742, if I believe Mr. Oschefski testimony, I must find him not guilty.
56Even if I do not believe his testimony, if it leaves me with a reasonable doubt about his guilt, I must find him not guilty.
57If I do not know whom to believe, it means that I have a reasonable doubt and I must find him not guilty.
58Finally, even if his testimony does not raise a reasonable doubt about his guilt, if after considering all the evidence that I do accept, I am not satisfied beyond a reasonable doubt of his guilt, I must find him not guilty.
59In going through this process, I must remember that the defendant, like every other person charged with a crime, is presumed to be innocent unless and until the prosecutor has proven his guilt beyond a reasonable doubt.
60It is not enough for me to believe that he is probably more likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.
61Conversely, it is nearly impossible to prove anything with absolute certainty and the prosecutor is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However, I must remember the direction from the Supreme Court of Canada in R. vs. Starr, 2000 SCC 40, 2000, S.C.J. No. 40 at paragraph 242 where the Court stated that, “the reasonable doubt standard, falls much closer to absolute certainty than to proof on a balance of probabilities.”
62This is a tough standard, and it is so tough for very good reason. As Justice Corey said in the Supreme Court of Canada decision in Lifchus, 1997 CanLII 319 (SCC), 1997, S.C.J. No 77, at paragraph 13, “the onus resting upon the crown to prove the guilt of the accused beyond a reasonable doubt, is one of the principal safeguards which seeks to ensure that no innocent person is convicted.”
Fairness to the Defendant
63The trial judge is required within reason to provide assistance to the unrepresented accused, to aid him in the proper conduct of his defence, and to guide him throughout the trial in such a way that his defence is brought out with its full force and effect. R v. Richards, 2017 ONCA 424, [2017] OJ 2680 (Ont. C.A.) In this case, the Court attempted to provide the defendant all reasonable opportunities with the appropriate assistance to move forward.
64Trial judges are permitted to control their courtroom and streamline the functioning of the trial. The power has three interrelated purposes, ensuring that trials proceed fairly, affectively and efficiently. Judges may intervene to manage the conduct of trials in many ways, including restricting cross examination that is unduly repetitive, rambling, argumentative, misleading or irrelevant. R v. Samaniego, [2022] SCC 9. In this case, it became apparent at the start, that case management skills would be required to maintain order in the Court and ensure a fair process to both the defendant and the prosecution.
65The decision respecting an adjournment is a discretionary exercise, one to be determined judicially balancing individual interests and factors affecting the administration of justice. R v. Ke, [2021] O.J. No. 1431 (OCA) paragraph 57. In this case, the fact that the trial had been set in April of 2024 to the one-day special hearing is of importance to note. Further disclosure was provided one week in advance of December 2, 2024. This disclosure consisted of the same expert report conclusion with a different expert named. This was of no prejudice to the defendant.
66In this matter and at the onset of the trial, the Court read the following to the defendant:
(a) Before we start, I will give you an overview of the trial process. I cannot give you legal advice but will certainly provide you with procedural guidance should you require it. The prosecutor has the onus to prove the charges against you beyond a reasonable doubt. They will call their witnesses first. The prosecutor will ask their witnesses questions first.
(b) You will then have an opportunity to also ask the witness questions. This is called cross examination. The purpose of cross examining a witness is to draw evidence from the witness that you feel will assist you in your defence or that otherwise tests the credibility or reliability of the evidence I have heard. The prosecutor will then be allowed to ask any follow up questions arising from your cross examination.
(c) When the prosecutor has finished calling all of their evidence, you will be given an opportunity to put in your defence if you choose. This includes calling witnesses, putting in any documentary evidence you may have, produce photographs if any and so on. You yourself can testify as a witness in this proceeding if you’d like. You are under no obligation to testify at your own trial – you can choose to remain silent. If you do choose to testify, the prosecutor will be allowed to ask you questions in cross examination. Keep in mind, in determining the outcome of the case, I can only consider evidence I've heard under oath from the witness box. Your questions are not evidence, the evidence is in the answers.
(d) When you have finished calling all your defence evidence, both you and the prosecutor will be given an opportunity to summarize your case in closing argument and I will then decide whether the prosecutor has proven the charge beyond a reasonable doubt, or not. Again, I can only consider evidence under oath from the witness box. Your closing argument isn't evidence but it's a chance to summarize the evidence and tell me how it supports your position.
67Mistake of Fact vs. Mistake of Law. With respect to the defence, that it was a mistake of law that he was not permitted to erect a cabin on his property, the Court relies on R v. Gauchier [2014] A.J. No. 585 (Alb. C.A.). Mistake of Law is not a defence and is not considered a mistake of fact.
Ruling
68In relation to Count 4, that the defendant permitted access to any City Road without an access permit, I find the defendant not guilty as the prosecutor has failed to establish a prima facia case. There is some evidence that I find a reasonable doubt as to the defendant’s guilt and as such I dismiss the charge.
69In terms of Counts 1 to 3, I find that the evidence of both witnesses, including the Exhibits tendered are believable beyond a reasonable doubt and I find Mr. Oschefski guilty. I do not find that the excuses proffered by the defendant to have any air of reality nor does his ignorance of the law avail him to a defence.
(a) Count 1 – He did have a trailer on his property in contravention of the Zoning By-law 1996-30, section 12.1.1
(b) Count 2 – He did have a cabin on the property in contravention of the Zoning By-law 1996-30, section 12.1.1
(c) Count 3 – He did have a cabin on the property within the minimum water setback of 30 meters in contravention of the Zoning By-law 1996-30, section 12.1.1.3(e)
Released: January 13, 2025
Signed: Justice of the Peace Joel Kulmatycki