DATE: 20000926

DOCKET : C32478

COURT OF APPEAL FOR ONTARIO

AUSTIN, LASKIN and FELDMAN JJ.A.

BETWEEN:

MUNICIPALITY OF DYSART et al. ) Neal J. Smitheman and

) Heather C. Devine,

Appellant/Prosecutor ) for the appellant/prosecutor

–and– )

MERVYN FREDERICK REEVE and ) William C. McDowell and

BARBARA ANN ATTRIDGE ) Andrew B. Matheson,

(also known as Barbara Ann Reeve) ) for the respondents/defendants

Respondents/Defendants )

) Heard: June 26, 2000

DOCKET: C32475

BETWEEN:

MERVYN FREDERICK REEVE and ) William C. McDowell and

BARBARA ANN ATTRIDGE ) Andrew B. Matheson,

(also known as Barbara Ann Reeve) ) for the appellants/defendants

Appellants/Defendants )

–and– )

MUNICIPALITY OF DYSART et al. ) Neal J. Smitheman and

) Heather C. Devine, for the

Respondent/Prosecutor ) respondent/presecutor

On appeal from the decision of The Honourable Mr. Justice Timothy C. Whetung dated December 4, 1998, February 24, 1999 and May 4, 1999

LASKIN J.A.:

[1] This is the sixth proceeding in a longstanding dispute between the Municipality of Dysart (“Dysart”) and Mervyn and Barbara Ann Reeve (“the defendants”). The dispute centres on the location of nine camp lots in the Silver Beach Camping Park, which the defendants have owned and operated since 1979. Dysart claims that the nine lots violate its 1977 zoning by-law because they are too close to neighbouring cottages. The defendants acknowledge that the lots are too close to the residential zone boundary but claim that they are a legal non-conforming use. Five previous prosecutions for violating the zoning by-law have failed to resolve this dispute.

[2] In July 1996 Dysart sought to prosecute the defendants a sixth time, charging each under the Planning Act R.S.O. 1990, c. P-13 and the Provincial Offences Act R.S.O. 1990, c. P-33 with twenty-five counts of zoning by-law violations. The defendants moved to stay or dismiss the charges as an abuse of process. By agreement of counsel and with the concurrence of the presiding justice of the peace, the abuse of process motion was not argued until all the trial evidence had been completed. At the end of the trial, on May 2, 1997, Justice of the Peace Glover stayed the charges as an abuse of process. Over a year later, on May 18, 1998, she issued further reasons in which she held that the defendants had not proved a legal non-conforming use and should therefore be convicted on all counts.

[3] Both sides appealed. On December 4, 1998 the appeal court judge, Whetung J., held that the justice of the peace had erred in granting a stay. In subsequent reasons, on February 24 and May 4, 1999, Whetung J. held that once the justice of the peace had granted a stay she lost jurisdiction to consider the charges on their merits. He ordered a new trial.

[4] Both sides appeal to this court with leave. The defendants ask that the stay be reinstated; Dysart asks that the convictions be restored. I would dismiss both appeals. In my view, the defendants have not met the “clearest of cases” standard to justify a stay. However, even if the justice of the peace had not lost jurisdiction, her decision on the merits cannot stand because she applied the wrong standard of proof. Therefore a new trial is the only appropriate disposition.

BACKGROUND FACTS

[5] Dysart’s zoning by-law 77-32, which was passed in 1977, allows any land zoned CT-1 to be used as a campground. The defendants’ lands are zoned CT-1. All lands zoned CT-1, however, must comply with s.15.4 of the by-law, which prohibits camp lots from being located closer than 30.0 metres to a residential zone boundary. Section 15.4 reads:

SPECIAL PROVISIONS FOR CT-1 ZONES

On the lands designated CT-1 on Schedule “A” hereto, no person shall use any lot or erect, alter or use any building or structure except in accordance with the provisions of Section 3 and Section 15.2 hereof, but subject to the following special provisions:

(a) Location of Camp Lots:

No part of any camp lot shall be located closer than 15.0 metres to any street line, nor closer than 30.0 metres to any Residential zone boundary.

The 30 metre set-back requirement was intended to provide some distance between residential uses and the adjacent tourist commercial use.

[6] The nine camp lots in issue are closer than 30 metres to the residential zone boundary. The defendants say that the land on which these lots are located was used for camping before the by-law was passed and, therefore, are a legal non-conforming use under s.34(9)(a) of the Planning Act, which provides:

(9) No by-law passed under this section applies,

(a) to prevent the use of any land, building or structure for any purpose prohibited by the by-law if such land, building or structure was lawfully used for such purpose on the day of the passing of the by-law, so long as it continues to be used for that purpose; …

Dysart says that the land was not used for camping in 1977; instead Dysart alleges that the nine lots were first used for camping in 1989 and thus s.34(9)(a) does not apply.

[7] Gordon Beal developed Silver Beach Camping Park and he owned it when Dysart’s zoning by-law was passed. He sold the camping park to the defendants in 1979 and they have owned it ever since. Neighbours complained about the nine lots in 1989 and these complaints prompted the first of six prosecutions against the defendants for violating s.15.4 of the zoning by-law. In 1991, the defendants were convicted after a trial but, in 1993, were acquitted on appeal because the information was deficient.

[8] In 1993, a second prosecution for violating the zoning by-law was nullified because the presiding justice of the peace did not have the authority to act.

[9] In May 1994, the defendants were charged a third time. These charges, however, were withdrawn when the Crown discovered that the by-law had been amended and the charges had been laid under the wrong provision.

[10] In June 1994, the defendants were charged a fourth time but their trial ended in a mistrial in October 1995 when the court’s recording equipment failed.

[11] In April 1996, the defendants were charged for the fifth time with violating s.15.4 of the zoning by-law. Before trial, they applied for an order under ss. 7 and 11(b) of the Canadian Charter of Rights and Freedoms prohibiting the trial from proceeding. On April 4, 1996, Ferguson J. of the General Division dismissed the application. The defendants did not appeal his decision. The charges, however, were dismissed on April 16, 1996 when the prosecutor did not appear because of a misunderstanding about when the trial was to start. The prosecutor appealed the dismissal but then withdrew the appeal.

[12] This brief history of the proceedings leads me to the present charges against the defendants, which were laid on July 16, 1996. The charges allege that from May 18 to June 11, 1996 the defendants permitted the nine camp lots “to be located closer than 30.0 metres to a residential zone boundary in violation of By-law 77-32, s.15, as amended”.

[13] I now turn to the two issues on this appeal: Should the stay be reinstated; and, if not, should the convictions be restored?

First Issue: Should the stay be reinstated?

[14] In granting a stay, the justice of the peace took into account the costs incurred by the defendants in defending the prosecutions, possible damage to their business, Mr. Reeves’ declining health, the unavailability of two witnesses – Mr. Patterson and Mr. Fowler – and the length of time since the first prosecution was launched. She concluded that the successive prosecutions had called into question the integrity of the court system.

[15] On appeal, Whetung J. held that the justice of the peace had erred in granting a stay. In his view, this was an ongoing offence, nothing had occurred since Ferguson J.’s decision that would warrant a stay, and the justice of the peace had not properly balanced the defendants’ interests with those of the community.

[16] In this court, the defendants make two arguments for reinstating the stay: first, they contend that they can no longer receive a fair trial because Mr. Patterson and Mr. Fowler are no longer available to give evidence; second, they contend that Whetung J. erred in failing to give deference to the justice of the peace’s order. I do not agree with either argument.

[17] The principles to be applied in deciding whether to grant a stay under s.7 of the Charter are now well-established. A trial judge has discretion to stay proceedings to remedy an abuse of the court’s processes caused by multiple or oppressive proceedings. However, that discretion should be exercised only in the “clearest of cases”. Only “where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases” is the administration of justice best served by staying the proceedings. See R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659 at 1667.

[18] In the case before us, the defendants’ motion to stay the fifth prosecution as an abuse of process was dismissed by Ferguson J. and his decision was not appealed. Thus, the defendants must acknowledge that even five prosecutions of them for zoning violations did not meet the “clearest of cases” standard. What then has changed to justify staying the sixth prosecution? The defendants say that Mr. Patterson and Mr. Fowler are no longer available to give evidence. Mr. Patterson is dead and Mr. Fowler was in ill health and apparently could not testify at the trial before Justice of the Peace Glover.

[19] However, Mr. Patterson was one of the original complainants. Therefore, his evidence likely would not assist the defence. Mr. Fowler does apparently have evidence helpful to the defence, although neither side knows what he would say. Still, while he may have been too ill to come to the trial, the defence took no steps to examine Mr. Fowler out of court. Nor did the defence ask for an adjournment until he could testify. Therefore, I do not think the defendants can rely on the unavailability of Mr. Patterson or Mr. Fowler to justify a stay.

[20] The defendants also argue that Whetung J. erred by simply substituting his opinion for that of the justice of the peace and that, instead, he should have deferred to her exercise of discretion in granting a stay. I, of course, agree that a stay is a discretionary remedy and, as such, merits deference from a reviewing court. However, an appellate court is justified in interfering when the trial judge has exercised her discretion unreasonably. See R. v. Carosella (1997), 1997 CanLII 402 (SCC), 112 C.C.C. (3d) 289 (S.C.C.). In my view, that is what occurred here.

[21] The justice of the peace exercised her discretion unreasonably for two main reasons. First, she failed to adequately appreciate that nothing had taken place since the order of Ferguson J. to adversely affect the fair trial rights of the defendants.

[22] Second, she failed to give enough weight to the context of these prosecutions. Multiple prosecutions of an accused or a defendant may well, at some point, justify a stay. See, for example, R. v. Jack (1997), 1997 CanLII 356 (SCC), 117 C.C.C. (3d) 43 (S.C.C.) and R. v. Mitchelson (1992), 1992 CanLII 4018 (MB CA), 71 C.C.C. (3d) 471 (Man. C.A.). But the context is important. These defendants were charged not with a Criminal Code offence, but with regulatory offences, with violating the municipality’s land use requirements. The offences are not alleged to have occurred at a discrete point in time but to be ongoing violations. The practical effect of a stay would be to give the defendants a legal non-conforming use by court order without the merits of their position ever having been adjudicated. Viewed in this way, it seems to me the community’s tolerance for successive prosecutions is greater than it might be in other kinds of cases. At least for now, the community’s interest in enforcing its land use requirements outweighs any unfairness in prosecuting the defendants again.

[23] I do not mean to suggest that the defendants have not been adversely affected by the number of prosecutions brought against them or that the prosecution is blameless. Far from it. The defendants have suffered and the prosecution has not been nearly as diligent as it should have been. However, at this stage, I am not satisfied that the defendants have met the “clearest of cases” standard. I would therefore dismiss the defendants’ appeal to reinstate the stay.

Second Issue: Should the convictions be restored?

[24] The justice of the peace delivered two sets of reasons: in the first, she ordered a stay; in the second, released over a year later, she convicted the defendants of violating Dysart’s zoning by-law. Much of the argument before Whetung J. and in this court centred on the effect of the justice of the peace’s later reasons. The defendants submit that once the justice of the peace ordered a stay she lost jurisdiction, or to use the familiar Latin phrase, she became functus officio. Thus, her reasons for conviction were given without jurisdiction and cannot be relied on by Dysart. Whetung J. agreed with the defendants’ submission.

[25] Dysart, on the other hand, contends that the justice of the peace’s stay was an interlocutory order, which was supplanted by her reasons for conviction. Thus, Dysart argues that the justice of the peace never lost jurisdiction. Even if she did lose jurisdiction, Dysart submits that this court has the power to and should reinstate the convictions because the justice of the peace, having heard all the evidence, found the defendants guilty.

[26] The justice of the peace’s reasons do not disclose her intent. She does not say that the stay was intended to last only until she dealt with the defendants’ guilt or innocence. Nor does she suggest that her reasons for conviction were intended to supplant her stay order. However, a benign view of what she did was stay the prosecution as an abuse of process, but because she had heard all the evidence, make findings on the merits. Therefore, if a reviewing court found she had erred in granting a stay, it would have the benefit of her findings on the evidence.

[27] This court’s judgment in R. v. A.(D.) (1992), 1992 CanLII 2833 (ON CA), 76 C.C.C. (3d) 1 at 9 supports what the justice of the peace did. In R. v. A.(D.), this court held that the trial judge had improperly stayed eight of eleven counts against an accused. The trial judge had heard all the evidence and had acquitted the accused on the other three counts. Dubin C.J.O., writing for this court, held that “[h]aving heard all the evidence the learned trial judge should have proceeded to determine the guilt or innocence” of the accused on the stayed counts. Implicit in Dubin C.J.O.’s reasoning is that a trial judge does not necessarily lose jurisdiction to decide the merits of a case after staying the proceedings. Here, though preferably the justice of the peace should have dealt with the stay and her findings on the merits at the same time instead of over a year apart, following R. v. A.(D.) I would hold that she did not lose jurisdiction to make findings on the merits.

[28] Nonetheless, her findings of guilt cannot stand because she applied the wrong standard of proof. She correctly held that the defendants bore the onus to establish a non‑conforming use. However, she held that the defendants must do so on the criminal standard, that is they must prove a lawful non-conforming use beyond a reasonable doubt. She wrote:

The defence relies on numerous cases including the case of Central Jewish Institute v. Toronto which deals with a legal non-conforming use. In order to accept this argument, the Court would have to accept that the evidence presented by the defence has shown beyond a reasonable doubt that they fall within the requirements of a legal non-conforming use and based on the evidence before the Court the defence has not met the requirement of showing a continuous use.

[29] This was a fundamental error. The defendants need only prove a legal non-conforming use on a balance of probabilities. See City of Toronto v. San Joaquin Investments Ltd. et al. (1978), 1978 CanLII 1576 (ON SC), 18 O.R. (2d) 730 at 739 (H.C.J.), aff’d on other grounds (1979), 1979 CanLII 2044 (ON SC), 26 O.R. (2d) 775 (C.A.), leave to appeal to S.C.C. refused (1980), 26 O.R. (2d) 775; and Sudbury (Regional Municipality) v. Canapini Brothers Ltd. (7 November 1990), Doc. No. Sudbury 216/89 (Ont. Gen. Div.).

[30] The prosecutor concedes that the justice of the peace applied the wrong standard of proof but invites the court to invoke the curative provision in s.120(1)(b)(iii) of the Provincial Offences Act, which permits an appellate court to dismiss an appeal from conviction despite an error of law by the trial judge, if no substantial wrong or miscarriage of justice has occurred.

[31] I would not apply this curative provision. Whether the defendants can establish a legal non-conforming use depends largely on credibility. The evidence of the defence witness Jeannette Shields, if accepted, might be enough to make out a legal non-conforming use on a balance of probabilities. I therefore cannot conclude that the result would necessarily have been the same had the correct standard of proof been applied. See R. v. Ellis-Don (1990), 1990 CanLII 6968 (ON CA), 61 C.C.C. (3d) 423 (Ont. C.A.); reversed (1990), 1992 CanLII 94 (SCC), 71 C.C.C. (3d) 63 (S.C.C.) and R. v. Audet (1996) 1996 CanLII 198 (SCC), 106 C.C.C. (3d) 481 (S.C.C.).

[32] Dysart makes one other submission to support the convictions. Section 34(9)(a) of the Planning Act exempts the application of a by-law prohibiting a given use of land if the land was used that way when the by-law was passed and continues to be used that way. Dysart’s zoning by-law was passed in 1977. To establish a legal non-conforming use, the defendants led evidence to show that the nine disputed lots were used for camping between 1970 and 1977. Dysart submits, however, that this evidence does not help the defendants because, even in 1970, the nine lots could not be used for camping. Dysart relies on its by-law 70-5 (passed under the Municipal Act), which regulated the design, licensing and operation of campgrounds within the municipality between January 1970 and July 1979. This by-law required that no campsite or trailer be located nearer than 100 feet (or approximately 30 metres) from the nearest property line.

[33] In my opinion, Dysart cannot rely on its licensing by-law to rebut the defendants’ defence of a legal non-conforming use. The defendants were never charged with violating the 1970 licensing by-law. This case was tried on the 1977 zoning by-law. More important, a municipality cannot invoke its licensing authority to restrict or regulate the use of land. See City of Prince George v. Payne (1977), 1977 CanLII 161 (SCC), 75 D.L.R. (3d) 1 at 7 and 893472 Ontario Ltd. v. Whitchurch-Stouffville (Town) (1991), 7 M.P.L.R. (2d) 296 (Ont. Gen. Div.). Therefore, Dysart’s licensing by-law 70-5 is irrelevant to the defence of legal non-conforming use.

[34] For these reasons, I would dismiss Dysart’s appeal to restore the convictions of the defendants. In my view, the only fair result is to order a new trial.

CONCLUSION

[35] I would dismiss both the defendants’ appeal and Dysart’s appeal. I would affirm Whetung J.’s order of a new trial.

Released: SEP 26 2000 Signed: “John Laskin J.A.”

A.McN.A. “I agree. Austin J.A.”

“I agree K. Feldman J.A.”