Her Majesty the Queen v. Montgomery et al. [Indexed as: R. v. Montgomery]

101 O.R. (3d) 239

2010 ONCA 243

Court of Appeal for Ontario,

Feldman, Sharpe and Gillese JJ.A.

April 6, 2010

Courts -- Jurisdiction -- Justice of the peace -- Justice of the peace having jurisdiction to try charges under federal Fisheries Act where Crown proceeds summarily -- Fisheries Act, R.S.C. 1985, c. F-14.

The accused were charged with offences under ss. 35(1) and 36(1) of the Fisheries Act. The Crown proceeded summarily. The trial was conducted by a justice of the peace, and the accused were convicted of the offence under s. 35(1). They brought an application for prohibition challenging the jurisdiction of the justice of the peace. The application was dismissed. The accused appealed.

Held, the appeal should be dismissed.

The justice of the peace had jurisdiction to try charges under the Fisheries Act where the Crown proceeded summarily.

APPEAL from the order of Gunsolus J., [2009] O.J. No. 4895 (S.C.J.) dismissing an application for an order of prohibition.

Cases referred to Lyne v. Canada (National Capital Commission), [1997] O.J. No. 5365, 32 M.V.R. (3d) 292, 37 W.C.B. (2d) 165 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 2 [as am.], 785 [as am.], (a), (b), 798 Fisheries Act, R.S.C. 1985, c. F-14, ss. 35(1), 36(3), 40(1) [as am.] Justices of the Peace Act, R.S.O. 1990, c. J.4, s. 17(2) [rep. S.O. 2006, c. 21, Sch. B, s. 15]

William Montgomery, appellant appearing in person and on behalf of Frances McQuestion. Nicholas E. Devlin, for respondent.

[1] Endorsement BY THE COURT: -- The appellants were charged with offences under ss. 35(1) and 36(3) of the Fisheries Act, R.S.C. 1985, c. F-14, and pursuant to s. 40(1) of that Act, which allows the offences to be prosecuted by way of summary conviction. It was alleged that they had harmfully altered or destroyed fish habitat by building a float-plane dock in the shoreline waters of Kennisis Lake.

[2] The charges were prosecuted as summary conviction offences and their trial was conducted by Her Worship Justice of the Peace Diane L. Jackson. They were convicted of the offence under s. 35(1) of the Act. They challenged the jurisdiction of the justice of the peace by means of a prohibition application before [page240] the Superior Court of Justice. Gunsolus J. dismissed that application and they now appeal to this court.

[3] We see no error in the reasoning or result below. The trial proceeded as a summary conviction proceeding. The reviewing judge correctly explained the source of jurisdiction of the justice of the peace to try this case. In summary, his reasoning proceeded as follows. Section 798 of the Criminal Code, R.S.C. 1985, c. C-46 provides that:

798. Every summary conviction court has jurisdiction to try, determine and adjudge proceedings to which this Part applies in the territorial division over which the person who constitutes that court has jurisdiction. Section 785 of the Criminal Code defines "proceedings" as meaning (a) proceedings in respect of offences that are declared by an Act of Parliament . . . to be punishable on summary conviction . . . and "summary conviction court" as including

a person who has jurisdiction in the territorial jurisdiction where the subject-matter of the proceedings is alleged to have arisen and who . . . . . (b) is a justice or provincial court judge, where the enactment under which the proceedings are taken does not expressly give jurisdiction to any person or class of persons[.] Finally, in s. 2 of the Criminal Code, "justice" is defined as including a justice of the peace.

[4] This court has recognized that justices of the peace are empowered to try summary proceedings involving federal legislation: see Lyne v. Canada (National Capital Commission), [1997] O.J. No. 5365, 32 M.V.R. (3d) 292 (C.A.). At the relevant time in these proceedings, s. 17(2) of the Justices of the Peace Act, R.S.O. 1990, c. J.4 expressly authorized provincial justices of the peace to conduct such trials. Section 17(2) read as follows:

17(2) Justices of the peace shall exercise the powers and perform the duties conferred or imposed on a justice of the peace by or under an Act of the Legislature or of the Parliament of Canada.

[5] We conclude by noting that the Crown has asked that the court indicate that the initial proceeding was a summary conviction proceeding and that any appeal from conviction lies to the Superior Court of Justice. It is so noted.

[6] Accordingly, the appeal is dismissed.

Appeal dismissed.