Environmental Law - OCJ

Timothy Barnhart, having been found guilty of Fisheries Act offences, brought a constitutional application seeking a declaration that sections 35 and 40 of the Fisheries Act infringed his Aboriginal and treaty rights, specifically a right to clean drinking water and a right to modify his land without interference.

The Crown moved to dismiss this constitutional application.

The Ontario Court of Justice dismissed Barnhart's application, finding that he failed to provide sufficient evidentiary basis to establish the existence of the claimed treaty or Aboriginal rights under the Simcoe Deed (Treaty 3 ½) or to demonstrate a prima facie breach of such rights.

The court emphasized the need for cogent evidence regarding pre-contact practices for Aboriginal rights and common intention for treaty rights, and noted the conflict between the individual's actions and the community's interests.

Volkswagen Aktiengesellschaft pleaded guilty to 60 charges under the Canadian Environmental Protection Act, 1999, including 58 counts of unlawfully importing vehicles that did not conform to prescribed vehicle emissions standards and two counts of providing misleading information.

The company admitted to installing defeat devices in approximately 128,000 diesel vehicles imported into Canada between 2008 and 2015, which allowed the vehicles to pass emissions testing while emitting substantially higher nitrogen oxide levels during normal driving conditions.

The court imposed a fine of $196,500,000, the largest environmental fine in Canadian history at that time, reflecting the severity of the deliberate deception, the environmental and health risks created, and the need for deterrence and denunciation.

Applicants challenged environmental charges under the Ontario Environmental Protection Act, arguing that provincial environmental legislation should not apply to stevedoring activities on federal Crown property at the St. Lawrence Seaway.

The applicants invoked doctrines of interjurisdictional immunity and federal paramountcy, contending that the provincial provisions impaired federal jurisdiction over navigation and shipping and frustrated the purposes of the Canada Marine Act and Seaway Property Regulations.

The court dismissed the application, finding that neither doctrine applied.

The court held that stevedoring is integral to shipping but that environmental protection requirements do not impair the core federal power.

The court also found that provincial and federal environmental regimes can operate harmoniously without conflict.

The Halton Region Conservation Authority sought to amend charges against a corporate defendant relating to alleged interference with a wetland and watercourse.

The prosecution moved to expand the time frame of 30 charges from August 28, 2012 to September 26, 2012, to May 1, 2011 to September 26, 2012, and to add particulars regarding destruction of vegetation to three counts.

The court granted the motion, finding that the evidence of the defendant's farming activities supported the amendments, the circumstances were serious environmental protection matters, the defendant was not prejudiced, and the limitation period had not expired.

The defendant was charged with fifty-six counts of unlawfully removing, injuring, or destroying Heritage trees without a permit under the Town of Ancaster By-Law No. 2000-118.

The charges arose from tree cuttings on the Golf Links property in Hamilton between July 20 and August 10, 2014.

The defendant brought a motion for a directed verdict and a Charter delay challenge, both of which were denied.

The court found that the prosecution established a prima facie case and that the matter proceeded well within the eighteen-month threshold established by R. v. Jordan for Provincial Offences Act matters.

Following a trial on the merits, the court found the defendant guilty on all fifty-six counts.

The court rejected the defendant's defenses of mistake of fact, due diligence, and officially induced error, finding that the defendant failed to take reasonable steps to determine whether a permit was required before cutting the trees.

Two defendants were charged with fishing with a hook in a manner to pierce or hook a fish in any part of the body other than the mouth, contrary to s.9(1)(a) of the Ontario Fishing Regulations, 2007.

The defendant Mandeleew was additionally charged with sport fishing by means other than angling for Pacific salmon, contrary to s.35(2)(e) of the Ontario Fishing Regulations, 2007.

Conservation officers observed the defendants fishing at night using weighted lines with bare hooks, employing jerking and sweeping motions consistent with "snagging." The court found both defendants guilty of the first charge.

Mandeleew was also found guilty of the second charge for using a landing net to attempt to catch salmon.

The court applied strict liability principles, finding that the manner of fishing, rather than intent, was determinative.

The defendants were charged with discharging or causing the discharge of a pesticide (Headline) into the environment contrary to the Pesticides Act.

The Crown alleged that on July 23, 2013, a helicopter operated by the defendants sprayed pesticide near Highway 40 and St. Andrews Line in Chatham-Kent, causing material discomfort to two witnesses.

The trial hinged on identity and whether the pesticide was improperly used.

The court found that while the pesticide was detected and material discomfort was established, the Crown failed to prove identity and improper use beyond a reasonable doubt.

The critical evidence linking the defendants to the incident (Exhibit 13) was found to be unreliable due to authentication and reliability problems.

The defendants were acquitted.

The defendants were charged with five counts of importing engines without evidence of conformity as required by the Canadian Environmental Protection Act.

The Crown alleged importation of seven small spark-ignition engines and five diesel engines mounted in tractors.

The court found that while the Crown proved the importation of tractors and that the engines were of a prescribed class, it failed to prove beyond a reasonable doubt that all engines had a model year of 2006 or later (for tractors) or 2005 or later (for small engines), which was an essential element of the offence.

The court convicted on one count relating to a tractor engine but acquitted on the remaining counts.

The Crown prosecuted four defendants for violations of the Nutrient Management Act and Ontario Water Resources Act relating to a large hog finishing operation near Newburgh, Ontario.

The defendants failed to comply with specific items in a Director's Order, including providing written confirmation that manure production had ceased and submitting engineering assessments and site characterization studies.

The court found the defendants guilty on five counts, rejecting their defences of due diligence, reasonable mistake of fact, and officially induced error.

The court found that the defendants' belief that filing a Nutrient Management Strategy application obviated their need to comply with the Director's Order was unreasonable and contrary to law.

A conditional stay was entered on one count due to duplication of charges.

The defendant, a helper trapper, was charged with using a non-certified trap (Woodstream Oneida Victor Conibear 120) for trapping pine marten, contrary to section 18(1)(a) of Regulation 667/98 under the Fish and Wildlife Conservation Act.

The defendant argued that responsibility for compliance with the regulation rested solely with the head trapper under section 10(2) of the regulation.

The court rejected this argument, finding that helper trappers are independently required to comply with all trapping regulations, including trap certification requirements.

The court convicted the defendant of the offence as a strict liability matter in a public welfare statute, noting the defendant presented no evidence of due diligence.

The applicants brought a motion under section 24(2) of the Canadian Charter of Rights and Freedoms to exclude evidence seized during environmental protection inspections and a search warrant executed by officers of the Canadian Environmental Protection Agency.

The applicants were charged with importing tractors and small engines without proof of conformity to Canadian emission standards.

The court found that the December 2009 seizure was unreasonable due to an improperly issued Environmental Protection Compliance Order, the June 2010 seizure was unreasonable as it relied on the prior unlawful seizure, and the September 2010 computer search was unreasonable as the Information to Obtain lacked any grounds to believe relevant documents would be found in a computer.

The court excluded the computer evidence but admitted the seized equipment and observations thereof.

A voir dire was held to determine the admissibility of lay opinion evidence from a watershed enforcement officer regarding the freshness of topsoil observed at a property.

The officer opined that topsoil was "very fresh material" based on observations of construction equipment, lack of vegetation, and crisp bulldozer tracks.

The court applied the four-element test from Regina v. Graat to determine whether the lay opinion evidence was admissible.

The court found that all four elements were satisfied: the officer was in a better position than the trier of fact to form the conclusion; the conclusion was one that persons of ordinary experience could make when combined with the officer's experiential capacity; the officer had the necessary experiential capacity despite not being an expert; and the opinion was a compendious mode of stating complex facts.

The opinion was admitted into evidence.

The defendant was convicted of injuring or destroying a tree growing on the boundary between adjoining lands without the consent of the land owner, contrary to section 10(3) of the Forestry Act.

The sentencing hearing addressed the appropriate penalty under the Act, which provides for a maximum fine of $20,000 and/or imprisonment for up to three months.

The court considered mitigating factors including the defendant's lack of criminal record, his receipt of a municipal permit of exemption identifying the tree as hazardous, and his cooperation through an agreed statement of facts.

The court also considered aggravating factors including the impact on the neighbours and the delay in removing the tree despite knowledge of its hazardous status.

The court imposed a fine of $5,000 and declined to impose a probation order.

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.

A private information was brought against the defendant for injuring or destroying a tree growing on the boundary between adjoining lands without the consent of the land owner, contrary to section 10(3) of the Forestry Act of Ontario.

The defendant, a property owner, had instructed a tree removal company to cut down a Norway maple tree located on the property line between his property and the plaintiff's property.

The defendant had obtained a Confirmation of Exemption from the City of Toronto identifying the tree as imminently hazardous and requiring its removal.

The defendant argued that no conflict existed between the provincial Forestry Act and the City of Toronto's municipal code regarding hazardous trees, and that he was entitled to remove the tree based on the city's determination.

The court found that the defendant had failed to obtain the consent of the co-owners before removal, despite the exemption document explicitly stating that the applicant must resolve ownership issues.

The defendant was convicted of the offence.

The respondent parents brought a motion under Rule 20(5) of the Family Law Rules seeking disclosure of the names and addresses of all private investigators hired by the Children's Services society, along with copies of all correspondence, retainer agreements, and exchanges between the society and investigators since November 2012.

The parents alleged they had observed unknown persons conducting surveillance of their home and taking photographs.

The society claimed litigation privilege over the surveillance materials.

The court dismissed the motion, finding that while the society has a broad disclosure obligation under Stinchcombe principles, litigation privilege protects work product prepared in contemplation of litigation, including surveillance conducted for litigation purposes that has not been relied upon as evidence.

The appellant, Consbec Inc., appealed a sentencing decision arising from a guilty plea to permitting a blast that carried fly rock beyond the limits of a quarry property in violation of the Environmental Protection Act.

The trial Justice of the Peace imposed a fine and a restitution order of $10,000 to compensate for damage to a neighboring well.

The appellant challenged the qualification of the Crown's expert witness and the sufficiency of reasons for the decision.

The appeal court upheld the trial decision, finding that the expert qualification was properly exercised and that the reasons, while not extensive, were sufficient to support the conclusion that the blast caused damage to the well water quality.

The defendant pleaded guilty to two counts: failing to remit revenues from fishing licence sales over a two-year period (approximately $50,931.92) contrary to the Fish and Wildlife Conservation Act, 1997, and unlawfully possessing fish in excess of the daily possession limit contrary to the Ontario Fishery Regulations, 2007.

The defendant was a 50-year-old Canadian citizen operating a fishing licence sales business who had recently undergone personal bankruptcy and made partial restitution of approximately $30,000 out of $98,000 owed.

The court imposed a 30-day intermittent sentence (served on weekends), a $300 fine for the possession offence, and two years of probation, balancing denunciation and general deterrence against mitigating factors including the defendant's economic circumstances, guilty plea, and restitution efforts.

The Crown charged Timur Leckebusch with two counts of unlawfully undertaking development without a permit in a Development Control area under the Niagara Escarpment Planning and Development Act: construction of an earthen berm and construction of a retaining wall.

The Crown also charged 819743 Ontario Inc. with unlawfully undertaking development without a permit for construction of an armour stone wall.

The defendants argued that the structures were exempt from the permit requirement as accessory structures to general agricultural development under Ontario Regulation 828.

The court found that the Crown proved the actus reus of all three offences beyond a reasonable doubt.

However, the court found that Leckebusch successfully established the exemption for both the berm and retaining wall on a balance of probabilities, resulting in acquittals on both counts.

The court found that 819743 Ontario Inc. failed to establish the exemption for the armour stone wall and was convicted.

The defendant was charged with failing to surrender evidence of insurance for an off-road vehicle within seventy-two hours of a peace officer's request, contrary to section 15(4) of the Off-Road Vehicle Act.

The defendant claimed he was an occupier of Crown land under a 21-day free use permit and therefore exempt from the requirement.

He also raised Charter issues regarding unlawful detention, breach of the right to remain silent, and unlawful search.

The court found that the defendant was not a legal occupier of the Crown land, that his arrest was lawful, and that while a search of his saddle-bag breached his Charter rights, no evidence was seized.

The court found the defendant guilty of the included offence under section 15(3) of the Off-Road Vehicle Act as the element of ownership could not be proven beyond a reasonable doubt.