Court File and Parties

Ontario Court of Justice

Date: 2018-07-23

Court File No.: Halton – Burlington informations nos. 1260-999-13-7246; 1260-999-7247; 1260-999-14-7592

Between:

Halton Region Conservation Authority - Prosecutor

— AND —

Houshyar Ahmad, Lavinder Aulakh, Harkamaljit Singh Bahia, Benji Transport Inc., Brock Aggregates Inc., Lewis Burchell, Dancar Haulage Corporation, Dilligaf Logistics Ltd., EarthCo Soil Mixtures Inc., G & L Group Ltd., Nana Gambrah, Gambrah Trucking Co., Courtney Gayle, Heavy Weight Trucking Inc., Hours Trucking Company, Zakir Housein, Coleen Ann Hunter, Jas Deol Trucking Inc., Jeorge Campoverde Haulage Ltd., Pasquale Lamanna, Carol McLean, Anthony Mensa, Earl Patrick, Nickolai Romantchenko, Noel Roper, Jaspal Singh, Tylors Trucking Services Inc., Surjit Uppal, Carlo Waite, O'Niel Young, Erica Young, 1167877 Ontario Inc., 1191669 Ontario Inc., 1688543 Ontario Inc., 1770195 Ontario Inc., 2163832 Ontario Inc. and 6282121 Canada Inc. under information number 1260-999-13-7247; Daryn Bagg and Salman Cevlik under information number 1260-999-7246; EarthCo Soil Mixtures Inc. under information number 1260-999-14-7592 – Defendants

Before: Justice of the Peace Kenneth W. Dechert

Heard on: June 11, 2018 and July 9, 2018

Reasons for Ruling released on: July 23, 2018

Provincial Offences Court – Burlington, Ontario

Counsel:

J. Wigley – counsel for the Halton Region Conservation Authority
M. Klaiman – counsel for the Defendants

Ruling on Motion to Amend

Statutes, Regulations and Rules Cited

Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended, subsections 28(16) and 28(16.1)
Ontario Regulation 162/06, made pursuant to the Conservation Authorities Act, paragraphs 2(1)(b), 2(1)(d), 2(1)(e) and section 5
Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, subsections 34(1), 34(2), paragraph 34(3)(a), subsections 34(4) and 34(6)

Cases Cited

K.W. Dechert, J.P. (Orally)

Introduction

[1] By Notice of Motion dated the 25th day of May, 2018, the Halton Region Conservation Authority, hereinafter referred to as "the Authority" applies to amend the description of the charges against 2163832 Ontario Inc. in information number 13-7247, sworn on the 19th day of April, 2013. In particular, the Authority seeks to amend all 30 charges against the said corporate defendant so as to expand the time frame for the charges from the period "between the 28th day of August, 2012 to the 26th day of September, 2012" to the period "between the 1st day of May, 2011 to the 26th day of September, 2012", and to vary the particulars stated in charges nos. 25, 27 and 29 of the information so as to add the phrase "destruction of vegetation and/or". It should be noted that counts 25, 27 and 29 set out the offences of "interference with a wetland", "permitting another person to interfere with a wetland" and being a "party to the offence of interfering with a wetland", contrary to section 5 of Ontario Regulation 162/06. If these counts are amended as requested, those charges will be particularized to read "destruction of vegetation and/or placement of material without a permit".

[2] This motion to amend is made pursuant to section 34(2) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, hereinafter referred to as "the P.O.A.". The prosecution seeks to vary the wording of the said charges to conform to the evidence of defence witness, David Snyder, taken during the trial of these proceedings on February 27th, 2018. In considering the merits of this motion, I have considered the following documentary evidence filed by both the prosecutor and the defendant, 2163832 Ontario Inc.:

"Motion Record" of the Halton Region Conservation Authority, containing the Authority's Notice of Motion, dated May 25th, 2018, and a copy of the transcript of the testimony of David Snyder of February 27th, 2018, filed as exhibit #67;
"Agreed Statement of Facts", dated May 24th, 2018, filed as exhibit #68; and
"The Affidavits of the Defendants" document, dated May 24th, 2018, containing the affidavits of Surjit Uppal and David Snyder sworn on May 23rd, 2018, filed as exhibit #69.

[3] Furthermore, I have considered the testimonial and documentary evidence received by me in these trial proceedings as well as the legal submissions of counsel.

[4] 2163832 Ontario Inc. stands charged with the following offences prescribed by Ontario Regulation 162/06, contrary to subsection 28(16) of the Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended, which took place at Part Lot 13, Concession IX (Trafalgar Township), Town of Milton, municipally known as 7459 Auburn Road, Milton, Ontario:

Undertaking development, permitting another person to undertake development and being a party to undertaking development within a wetland, to wit: placement of material without a permit, contrary to clause 2(1)(d) of Ontario Regulation 162/06, as amended;
Undertaking development, permitting another person to undertake development and being a party to undertaking development within a wetland, to wit: grading of material without a permit, contrary to clause 2(1)(d) of Ontario Regulation 162/06, as amended;
Undertaking development, permitting another person to undertake development and being a party to undertaking development within 0 and 120 metres of a wetland greater than 2 hectares in size, to wit: placement of material without a permit, contrary to clause 2(1)(e) of Ontario Regulation 162/06, as amended;
Undertaking development, permitting another person to undertake development and being a party to the offence of undertaking development within 0 and 120 metres of a wetland greater than 2 hectares in size, to wit: grading of material without a permit, contrary to clause 2(1)(e) of Ontario Regulation 162/06, as amended;
Undertaking development, permitting another person to undertake development and being a party to the offence of undertaking development within a river or stream valley that has a depressional feature associated with a river or stream, to wit: placement of material without a permit, contrary to clause 2(1)(b) of Ontario Regulation 162/06, as amended;
Undertaking development, permitting another person to undertake development and being a party to the offence of undertaking development within a river or stream valley that has a depressional feature associated with a river or stream, to wit: grading of material without a permit, contrary to clause 2(1)(b) of Ontario Regulation 162/06, as amended;
Interfering, permitting another person to interfere and being a party to the offence of interfering with a river or stream valley that has a depressional feature associated with a river or stream, to wit: placement of material without a permit, contrary to section 5 of Ontario Regulation 162/06, as amended;
Interfering, permitting another person to interfere and being a party to the offence of interfering with a river or stream valley that has a depressional feature associated with a river or stream, to wit: grading of material without a permit, contrary to section 5 of Ontario Regulation 162/06, as amended;
Interfering, permitting another person to interfere and being a party to the offence of interfering with a wetland, to wit: placement of material without a permit, contrary to section 5 of Ontario Regulation 162/06, as amended;
Interfering, permitting another person to interfere and being a party to the offence of interfering with a wetland, to wit: grading of material without a permit, contrary to section 5 of Ontario Regulation 162/06, as amended.

[5] For purposes of this motion, the following facts are not in dispute:

The defendant, 2163832 Ontario Inc. has been the registered owner of the subject property, 7459 Auburn Road, Milton, Ontario, since July 2nd, 2008;
2163832 Ontario Inc. was incorporated under the laws of the Province of Ontario on February 19th, 2008;
Surjit (Sunny) Uppal is currently one of two directors of 2163832 Ontario Inc. and has been since July 4th, 2008.

The Testimony of Mr. David Snyder of February 27th, 2018

[6] Mr. David Snyder testified in these proceedings on February 27th, 2018.

[7] He stated that he was a farmer by occupation. He advised that in May of 2011 he entered into an arrangement with Mr. Surjit (Sunny) Uppal to rent the vacant land, municipally known as 7459 Auburn Road, Milton, Ontario ("the subject lands"), in order to farm the land. Mr. Snyder testified that in late May or early June 2011, he entered onto the land to prepare it for purposes of cultivation in the spring of 2012. He stated that at that time, he "sprayed" and "tilled" the entire farm from Auburn Road to the back of the property and the whole width of the property, from fence line to fence line, including, inadvertently, a portion of the abutting lands to the south-east. The defendant, 2163832 Ontario Inc. acknowledges that the said abutting lands is owned by Infrastructure Ontario ("the I.O. lands").

[8] Mr. Snyder testified that during the last week of May or the first week of June, 2011, he sprayed the entire property (both the subject lands and the I.O. lands), being approximately 30 to 33 acres, with an herbicide, "likely Roundup or a product called Touchdown". Mr. Snyder advised that the herbicide "kills all the foliage off" to make it easier to turn over the soil to prepare for planting of crops. He acknowledged that any natural vegetation or weeds which would have existed on the property (the subject lands and the I.O. lands) prior to the spraying activity, would be killed by the herbicide. During cross-examination, Mr. Snyder confirmed that the herbicide would kill "any weeds or grass", noting that "it basically just kills all the green".

[9] Mr. Snyder testified that in June 2011, after he had applied the herbicide to the lands, he began to "soil save" the property. He advised that a "soil saver" was a "newer style plough", which turned the soil over, noting that the activity is "a lot like ploughing". He stated that any existing vegetation on the property following the application of the herbicide, would be buried and left to decay by the "soil saving" activity.

[10] Mr. Snyder testified that once he had ploughed the whole farm property in June 2011, using the "soil saver" equipment, he left the farm until the fall of 2011. He stated that in the fall of 2011, he worked the farm property again in order to ensure that it was ready for cultivation in the spring of 2012. While he believed that he applied herbicide to the land at that time, he clearly remembered "soil saving" the lands one further time.

[11] Mr. Snyder testified that he returned to the subject lands and the I.O. lands in May of 2012, when he "worked" the land, "cultivated" the entire farm and planted soybeans on it. He stated that he sprayed herbicide on the property after the soybeans were planted, in order to "stop the weeds" from growing. During cross-examination, he advised that he planted wheat, rather than soybeans on the subject lands, noting that he took the wheat crop off the lands in August of 2012, when he was advised that the owner was "going to be doing some work on the property". He stated that he was able to harvest all of his wheat before "fill" was brought on to the property in August of 2012.

[12] During examination-in-chief, Mr. Snyder advised that he could not recall the existence of a creek or a watercourse running from the fence line on the I.O. lands towards the intersection of Auburn Road and Eighth Line in Milton, during the period between May 2011 and June 2012. When he was asked if he recalled seeing any depression in the land, which would give him "the impression of creek or a watercourse of any kind", Mr. Snyder replied "no… the land is up and down all over like normal farm land, it just seemed the same all over there".

[13] During cross-examination, Mr. Snyder acknowledged that in spraying herbicide on the vegetation on the property and in "soil saving" the lands, he would be driving a tractor. He advised that when operating the tractor he would notice a large depression in the land, because in that circumstance, he would have to slow the tractor down. He, however, agreed with the proposition of the prosecutor that if the depression in the land was "really small", he would not, likely, notice it because he would not need to reduce the speed of the tractor in that circumstance.

[14] In concluding his testimony, Mr. Snyder stated that he continued to farm the subject lands after August of 2012, cultivating both soybeans and wheat.

Relevant Statutory Provisions

[15] The procedure governing the amendment of P.O.A. informations or certificates is fully contained in section 34 of the P.O.A. The following portions of section 34 are relevant to this motion:

34(1) The court may, at any stage of the proceeding, amend the information or certificate as may be necessary if it appears that the information or certificate,

(a) fails to state or states defectively anything that is requisite to charge the offence;

(b) does not negative an exception that should be negatived; or

34(2) The court may, during the trial, amend the information or certificate as may be necessary if the matters to be alleged in the proposed amendment are disclosed by the evidence taken at the trial.

34(3) A variance between the information or certificate and the evidence taken on the trial is not material with respect to,

(a) the time when the offence is alleged to have been committed, if it is proved that the information was laid or certificate issued within the prescribed period of limitation; …

34(4) The court shall, in considering whether or not an amendment should be made, consider,

(a) the evidence taken on the trial, if any;

(b) the circumstances of the case;

(c) whether, the defendant has been misled or prejudiced in the defendant's defence by a variance, error or omission; and

(d) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.

34(6) An order to amend an information or certificate shall be endorsed on the information or certificate as part of the record and the trial shall proceed as if the information or certificate had been originally laid as amended.

[16] Additionally, the following provisions of the Conservation Authorities Act, supra, are relevant to the determination of this motion:

s. 28(16) Every person who contravenes a regulation made under subsection (1) or the terms and conditions of a permission of an authority in a regulation made under clause (1)(b) or (c) is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to a term of imprisonment of not more than three months.

s. 28(16.1) A proceeding with respect to an offence under subsection (16) shall not be commenced more than two years from the earliest of the day on which evidence of the offence is discovered or first comes to the attention of officers appointed under clause (1)(d) or persons appointed under clause (1)(e).

The Issues

[17] The sole issue in this motion, is whether, upon considering the four factors set out in subsection 34(4) of the P.O.A., it is appropriate to grant the amendments to the charges against 2163832 Ontario Inc., as stated in the subject Notice of Motion, in order to conform to the evidence of Mr. David Snyder taken at the trial.

[18] In determining this issue, I adopt the following comments of Quon J.P. in paragraph 108 of his decision in Ontario (Ministry of Government and Consumer Services) v. Ivan's Electric Limited, 2017 ONCJ 227 (Ont. C.J.):

It is also important while considering the four factors enumerated in s. 34(4) to take into account the overall philosophy of the Provincial Offences Act, which is to ensure that technical objections do not impede the arrival of a verdict on the merits and that the Act itself has provided a broad curative power to amend informations or certificates at any time during the proceeding.

[19] Furthermore, in considering the broad powers of amendment created by the provisions of section 34 of the P.O.A., I have applied significant weight to the opinion of Pelletier J. in her decision in Regina v. Larizza, [2006] O.J. No. 5335 (Ont. C.J.), where she remarked that "the scope of the remedial amending provision" in subsection 34(1) of the P.O.A. "is quite broad", noting that "the general rule concerning amendments of certificates and informations is that there is a bias in favour of amending".

[20] I will now analyze each of the said factors to determine whether or not the prosecution has met its onus to show, on a balance of probabilities, that the proposed amendments to the charges against the said corporate defendant may be ordered. As I embark on the task of determining whether it is appropriate to grant the requested amendments, I must remind myself that the essence of the regulatory offences against 2163832 Ontario Inc. is the alleged interference with and subsequent elimination of the wetland and watercourse on the subject lands and the adjacent I.O. lands, through the actions of the said corporate defendant in permitting and aiding destructive activities, without the permission of the Authority.

The Subsection 34(4) Factors

(i) The Evidence Taken on the Trial

[21] As stated above, the Authority's motion to amend is based upon the testimony of Mr. David Snyder, taken during the course of the trial on February 27, 2018. The testimony reflects the fact that between May 2011 and August 2012, drastic and irreversible measures were taken to destroy the natural ecological and physical characteristics, associated with the wetland and associated watercourse which according to the evidence existed on the subject lands and the abutting I.O. lands, prior to the time that farming activities commenced on the said lands.

[22] The expansion of the date range for the offences is necessary to underscore the fact that the wetland and watercourse were destroyed by unauthorized activities of applying herbicide to the natural vegetation on the wetland and soil saving the lands in the area of the alleged watercourse, with the apparent permission and acquiescence of 2163832 Ontario Inc. Accordingly, I am of the view that the alleged breaches of the regulations relating to undertaking development within a wetland or watercourse or the interference with a wetland or watercourse, began in May 2011 when significant interference with the ecological and physical environment occurred, with the permission of the said corporate defendant, in order to destroy both the wetland and watercourse. The offences continued until September 28, 2012, when the alleged unauthorized activities of placing and grading large quantities of top soil served to aggravate the already damaged wetland and watercourse.

[23] The amendments sought properly describe the offences as a continuing interference with the wetland and watercourse, leading to ongoing damage to the environment. By expanding the time frame to the point in time when the wetland and watercourse were initially assaulted and destroyed, with the permission of 2163832 Ontario Inc., the said defendant is precluded from taking advantage of its own illegality in permitting farming techniques to take place on the property to the detriment of the natural ecology, without first obtaining a permit for such farming activity from the Authority.

[24] Furthermore, the amendments sought to counts nos. 25, 27 and 29 of the Information against 2163832 Ontario Inc., simply add a particular to conform to the evidence to identify the nature of the acts which constitute the interference with the wetland by the destruction of vegetation through the application of the herbicide between the 1st day of May, 2011 and the 28th day of August 2012. It is an amendment which is supported by the evidence taken at trial.

[25] In conclusion, the evidence in this proceeding supports the totality of the proposed amendments to the charges against 2163832 Ontario Inc. As stated by Laskin J.A. in his decision in Regional Municipality of York v. Winlow (2009), 2009 ONCA 643, 99 O.R. (3d) 337 (Ont. C.A.), at para. 64:

…under s. 34(2) of the P.O.A., the legislature has expressly authorized the court to amend a charge to conform to the evidence disclosed at trial. Defendants have no vested right to insist on a trial only on the charge named on the certificate of offence. …

[26] Accordingly, this factor supports the authorizing of the requested amendments.

(ii) The Circumstances of the Case

[27] In his decision in York v. Winlow, supra, at para. 68, Mr. Justice Laskin made the following comments pertaining to this factor:

The particular circumstances of a case may well influence the court's decision whether to grant an amendment. For example in Ontario (Ministry of Labour) v. NMC Canada Inc. (1995), 25 O.R. (3d) 461, this court ordered an amendment to an information that had charged a partnership with a workplace safety offence. The amendment substituted for the partnership the two individual partners as defendants. One "circumstance of the case" strongly favouring the amendment was the seriousness of the charge: a workplace fatality. As a partnership is not a legal entity for the purpose of proceedings under the P.O.A., without the amendment the charge could not proceed.

[28] The charges against the corporate defendant are serious environmental protection charges. The circumstances of this particular case are also serious in that they deal with both a wetland and watercourse, which are connected to wetlands and watercourses on adjacent properties, and which have not only been interfered with but have been destroyed over a period of approximately 16 months.

[29] There is a need to pursue regular enforcement of environmental protection laws to encourage the survival of fragile ecosystems for the benefit of generations to come. Furthermore, there is a public welfare element in the enforcement of environmental protection legislation such as the Conservation Authorities Act for purposes of managing the environment in the interest of public safety, relative to issues of flood control.

[30] In this case the natural wetland and watercourse environment which had once existed on the subject property has allegedly been destroyed by landowners without first seeking the regulatory permission of the Authority. This is not simply a scenario of minor damage being done to the environment. There has been significant damage done to the wetland and the associated watercourse, killing the natural environment on the lands. Accordingly, technical objections such as the time of the alleged offences should not interfere with the need to adjudicate the circumstances of the subject offence against the owner of the subject lands, 2163832 Ontario Inc., on their merits.

[31] Accordingly, for those reasons, the circumstances of the continuing offence of interfering with a wetland, from May 1, 2011 to August 28th, 2012, thereby destroying the wetland and watercourse at the time of the filling of the lands in August and September 2012, are serious offences, which militates in favour of permitting the amendments sought.

(iii) Whether 2163832 Ontario Inc. has been Misled or Prejudiced in its Defence by a Variance, Error or Omission

[32] In generally discussing this factor in York v. Winlow, supra, Mr. Justice Laskin made, in part, the following comments at para 70 of the decision:

…To decide whether a defendant is misled or prejudiced under s. 34(4)(c), the court must consider whether the defendant's opportunity and ability to meet the charge would be adversely affected by the amendment.

[33] Furthermore at para. 112 of his decision in Ontario (Ministry of Government and Consumer Services) v. Ivan's Electric Limited, supra, Justice of the Peace Quon defined the "prejudice" factor as follows:

But more importantly, prejudice within the meaning of s. 34(4) of the P.O.A. refers to whether the proposed amendment would undermine or adversely or negatively affect the defendant's opportunity and ability to mount a full defence, to meet the charge, or to have a fair trial, and whether the defence would have been conducted differently (see R. v. Irwin and R. v. McConnell). This view of prejudice within the meaning of s. 34(4) of the P.O.A. was also confirmed by Healey J. at para. 21 in York (Municipality) v. Talabe, [2011] O.J. No. 654 (S.C.J.O.):

The Court of Appeal has dealt with the question of what constitutes prejudice sufficient that it cannot be cured by an amendment to an indictment or information. In R. v. McConnell, Rosenberg J.A. delivering the judgment of the Court wrote:

'As this court said in R. v. Irwin (1998), prejudice "speaks to the effect of the amendment on an accused's ability and opportunity to meet the charge". Thus in deciding whether an amendment should be allowed, the court will consider whether the accused will have a full opportunity to meet all issues raised by the charge and whether the defence would have been conducted differently. The respondent was aware of the essential elements of the charge and was aware of the transaction being alleged against him by the Crown disclosure. There would have been no prejudice in this case and defence counsel in his submissions to the trial judge did not point to any relevant prejudice. … .'

[34] In addressing this issue, the counsel for 2163832 Ontario Inc., admitted that the defendant has not been misled or prejudiced in its defence by the proposed amendments to the subject charges. In this regard, the counsel acknowledged that the corporate defendant knew of the actions in significantly interfering with the wetland and watercourse over the subject lands and the I.O. lands, as the farmer was called as a defence witness. There is, therefore, no issue that the defendant would not have had the opportunity or ability to meet the charges as amended by the variation. I therefore find that the said corporate defendant was not misled or prejudiced by the proposed amendments emanating from the testimony of February 27th, 2018.

(iv) Whether, Having Regard to the Merits of the Case, the Proposed Amendment can be Made Without Injustice Being Done

[35] In discussing this factor in Winlow, supra, Mr. Justice Laskin made the following comments pertaining to the "wide scope of this fourth requirement", at para. 80:

Even if the defendant would not be prejudiced by the amendment, the court should still refuse to amend if doing so would cause an injustice. I take injustice to capture the general notion of unfairness. Thus, under s. 34(4)(d) of the P.O.A., the court should not grant an amendment that would be unfair having regard to the merits of the case.

[36] In his final submissions in respect of this motion, the counsel for 2163832 Ontario Inc., argues that the expansion of the time frame of all 30 charges so as to back-date the starting time from August 28, 2012 to May 1, 2011, would expose 2163832 Ontario Inc. to quasi-criminal liability for the actions in interfering with the wetland and watercourse on the subject lands and the I.O. lands, outside of the limitation period for such allegations. The counsel argues that allowing the amendment expanding the allegations to include allegations of interference with a wetland and watercourse over the period between May 1, 2011 and August 28, 2012, would, therefore, be unjust having regard to the merits of the case. He submits that to approve the proposed amendments would deprive the corporate defendant of the defence of a limitation period violation, and would offend the general notion of fairness.

[37] The defendant's counsel contends that the evidence filed on this motion, including the Agreed Statement of Facts, the affidavits of both Surjit Uppal and David Snyder and the trial evidence, establishes that Watershed Enforcement Officer Nathan Murray, knew or ought to have known that farming activities were occurring on the subject lands and the I.O. lands thereby interfering with the wetland and watercourse, between February 15, 2013 and June 4, 2013. He therefore argues that the subject information should have been amended or a new information sworn, setting out the allegations between May 1, 2011 and August 28, 2012, no later than February 15, 2015. He states that since this was not done the new allegations are statute barred, and to allow the amendment would be tantamount to swearing a new information relative to the new allegations beyond the expiry of the limitation period as defined by subsection 28(16.1) of the Conservation Authorities Act. He concludes that to allow the amendment application under those circumstances would cause an injustice.

[38] On the other hand, the counsel for the Authority argues that the limitation period for the wetland and watercourse interference allegations of between May 1, 2011 and August 28, 2012 has not expired and will not expire until February 27th, 2020. The position of the Authority is that the evidence of the offences against 2163832 Ontario Inc., referable to the activities in applying herbicide to the wetland vegetation on the subject lands and the I.O lands and the destruction of the watercourse channels on the property by means of ploughing/soil saving activities, was first discovered by the Authority, through its counsel, following the testimony, tendered on behalf of the corporate defendants, on February 27th, 2018.

[39] In that regard, the counsel for the Authority argues that there is no evidence before the court which establishes on a balance of probabilities, that Watershed Enforcement Officer Murray first became aware of evidence of an offence or offences committed by 2163832 Ontario Inc.; under the regulations made pursuant to the Conservation Authorities Act during the period between May 1, 2011 and August 28, 2012, prior to February 27, 2018. In his affidavit sworn May 23, 2018, Surjit Uppal stated that some-time in late May or early June 2013, he spoke with Mr. Murray by telephone and advised him that he had "made an arrangement with Dave Snyder to permit him to farm the land in 2011". It is noteworthy that the information which was conveyed to Officer Murray was that an arrangement had been made to permit farming activities in 2011. There is no evidence which establishes that Officer Murray was told that farming activities were actually occurring in 2011 by preparing the field for planting, and in doing so the natural vegetation was being chemically destroyed and the land was being turned or ploughed over, so as to tamper with the functioning of the watercourse.

[40] The counsel for the Authority argues that based on the evidence before the court, it is clear that the Authority did not discover evidence of an offence under the regulations to the Conservation Authorities Act, until the time of the testimony in these proceedings when the farmer acknowledged his farming activities on the subject lands in 2011 and 2012. On the other hand, there is no admissible evidence before me as to when the Authority actually discovered evidence of offences against 2163832 Ontario Inc., on the subject lands and the I.O. lands, between May 2011 and August 2012. The counsel advises that the Authority first discovered evidence of these offences emanating from the said offence dates on February 27, 2018, when the testimony occurred in these proceedings. While that statement is not evidence, if it is accepted, then the limitation period for laying the charges of between May 1, 2011 and August 28, 2012, would not expire until February 27, 2020.

[41] The question which I must now determine is who is responsible for proving that the limitation period for the new allegations against the corporate defendant has not expired. It seems to me that if the prosecutor wishes to rely upon the provisions of paragraph 34(3)(a) of the P.O.A. to justify the amendment, then it must prove that the "information was laid within the prescribed period of limitation". I am of the opinion that the prosecutor has failed to meet its onus of persuasion in this regard as it has failed to proffer any direct admissible evidence as to when evidence of the expanded allegations of between May 1, 2011 and August 28, 2012, were actually discovered by the Authority. In my view the provisions of paragraph 34(3)(a) of the P.O.A. are not, therefore, available to justify the proposed amendments relating to the time when the offences were alleged to have been committed.

[42] On the other hand, it is clear that the counsel for 2163832 Ontario Inc. believes that the limitation period for the alleged offences to be amended, has expired. He argues, therefore, that the proposed amendments cannot be made without an injustice being done to the said corporate defendant.

[43] While the respondent's counsel is of the view that given all of the circumstances, Officer Murray knew or ought to have known of the offences committed by the corporate defendant through the activities, that is not the test set out in subsection 28(16.1) of the Conservation Authorities Act. The test is when the evidence of the offence is discovered or first comes to the attention of the enforcement officer. There is no evidence before me that Officer Murray actually became aware of the destructive activities in interfering with the wetland and watercourse on the subject property in 2011 and 2012, prior to the time of the testimony on February 27, 2018.

[44] Ergo, while the prosecution has failed to prove on a balance of probabilities that the limitation period for the expanded time period has not expired, 2163832 Ontario Inc. has also failed to meet its onus of persuasion to show that the limitation period defined by subsection 28(16.1) of the Conservation Authorities Act, has expired.

[45] In conclusion, there is no evidence before me to establish, on balance of probabilities, that Watershed Enforcement Officer Murray was aware of evidence pertaining to offences committed by 2163832 Ontario Inc. in giving permission to interfere with a wetland or a watercourse on the subject lands and/or the I.O. lands, or being a party to any such offences, during the period between May 1, 2011 and August 28, 2012. Accordingly, it has not been proved that the limitation period for the institution of the expanded date range of all thirty offences against the said corporate defendant has expired. It is obvious that the Authority actually discovered evidence of a contravention of the regulations when the testimony occurred in these proceedings. In those circumstances the limitation period for the subject offences commenced on February 27, 2018 for a period of two years.

[46] In light of my finding that it has not been proved that the limitation period for the offences expanded to include the time frame between May 1, 2011 and August 28, 2012, has expired, I am satisfied that the proposed amendments as described in Schedule 1 to the Motion Record, including the addition of the phrase "destruction of vegetation and/or" to counts 25, 27 and 29, may be made without injustice being done.

The Decision

[47] Upon considering and balancing the four factors set out in subsection 34(4) of the P.O.A., I am of the view that the prosecutor's amendment motion relative to the charges against 2163832 Ontario Inc. should be granted, consistent with the general rule that, under the P.O.A., there is a bias in favor of amending. The said motion dated May 25th, 2018, is therefore granted.

Released: July 23, 2018

Signed: "Justice of the Peace Kenneth W. Dechert"

Halton Region Conservation Authority v. Ahmad et al., 2018 ONCJ 534

Case Summary