Court of Appeal for Ontario

Citation: R. v. Lutczyk, 2007 ONCA 767

Date: 20071108

Docket: C46425

Between:

Her Majesty the Queen

Applicant/Appellant

and

Mieczyslaw Lutczyk

Respondent

Counsel:

Susan Ficek for the appellant

Scott C. Hutchison and Katherine Hensel for the respondent

Before: MOLDAVER, SHARPE and BLAIR JJ.A.

Heard and endorsed: November 7, 2007

On appeal from the decision of Justice Kofi N. Barnes of the Ontario Court of Justice dated October 10, 2006, allowing an appeal from conviction by Justice of the Peace P.N. Solomon dated March 1, 2005.

APPEAL BOOK ENDORSEMENT

[1] The respondent concedes and we agree, that the learned Appeal Judge erred in holding that notice and an opportunity to comply is a precondition for the enforcement of a zoning by-law by way of prosecution.

[2] That said, the respondent seeks to support the decision of the appeal judge, acquitting his client, on other grounds.

[3] Assuming, without deciding, that we have jurisdiction to consider those grounds, we would not give effect to them.

[4] The respondent did not argue officially induced error below and in any event, we are not satisfied that that defence is made out on this record.

[5] We see no error in the treatment of the expert evidence by the Justice of the Peace; nor are we persuaded that he erred in concluding that the unit was designed for use as single house-keeping establishment. The later two issues, in our view, are largely fact driven and we see no basis for interfering with the findings of the Justice of the Peace.

[6] Accordingly, the appeal is allowed and the conviction is restored.