COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Geil, 2013 ONCA 457

DATE: 20130319

DOCKET: M42088

Lauwers J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Responding Party

and

Jason John Geil, Janet Ann Bratton, Ontario Corporation #1410025 c.o.b. as Geil Style Enterprises Inc.

Moving Parties

Terrance G. Green and Mariah Soper, for the moving parties

Steven O’Melia, for the responding party

Heard: March 4, 2013

On motion for leave to appeal the judgment of Justice Gary F. Hearn of the Ontario Court of Justice dated November 28, 2012, dismissing the appeal from the convictions entered on January 26, 2011 and the sentences imposed on September 16, 2011 by Justice of the Peace Zeljana Radulovic.

ENDORSEMENT

[1] The applicants Jason John Geil, Janet Ann Bratton, Ontario Corporation #1410025 operating as Geil Style Enterprises Inc. built a farm roadway on land they owned to provide cultivation access to a section of their land. They did so without securing the permission of Grand River Conservation Authority. They were convicted of breaching a regulation under s. 28(16) of the Conservation Authorities Act, R.S.O., 1990, c. C.27, as amended. The conviction was upheld.

[2] The applicants seek leave to appeal under s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended.

[3] The principles for granting leave to appeal leave under s. 131 of the Provincial Offences Act are set out in Ontario (Labour) v. Enbridge Gas Distribution Inc., 2011 ONCA 13, per Watt J.A. at paras. 33-35. There must be question of law alone, the resolution of which may have an impact on the jurisprudence in a way that is of interest to the public at large, and that resolution must be essential in the public interest, in the sense of “material, important,” or for the due administration of justice: R. v. Krukowski 1991 CanLII 7305 (ON CA), [1991] O.J. No. 255 per Lacourciere J.A. at para 13. Further, the leave court may advert to the merits: Ontario (Labour) v. Enbridge Gas Distribution Inc.at para. 38.

[4] The legal issue that the applicants raised in argument can be distilled: Does the Provincial Policy Statement enacted by the Province under the Planning Act, R.S.O. 1990, c. P.13 immunize farmers from prosecution under the Conservation Authorities Act by a Conservation Authority where the offence relates to farming activities, in this case constructing a road incidental thereto?

[5] The applicants concede that the proper application of the Provincial Policy Statement was not argued before the trial justice. The applicants complain that trial counsel was incompetent in failing to do so. The issue was raised before the appeal court but was not referenced in the reasons for decision. The applicants complain that in failing to address the argument, the appeal court’s reasons do not comply with R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869.

[6] The applicants submit that the issue is of importance to farmers generally. They also point to another decision of a justice of the peace which they submit conflicts with the trial decision in this case. In R. v. Minas, (Justice of the Peace Ann Rohan, unreported, dated January 21, 2009), as in this case, the land was in agricultural use and a road was built without a permit in an area designated as a wetland subject to regulation by the Conservation Authority.

[7] There was some evidence in Minas that a laneway had existed on the land in the location of the road. In the course of his reasons for decision, the trial justice in Minas said:

The 2005 Ontario Provincial Policy stated that wetland protection is not to limit agricultural use. This is Mr. Thompson’s evidence (an expert land use planner), that the defendant did not require a permit as agricultural activities are exempt as it relates to wetland protection under the Planning Act.… It is this court’s opinion that a roadway existed for agricultural purposes on this property and may have been overgrown by lack of use over the years.… Quite frankly, the matter before the court is whether or not the defendants should have access to viable farmland over an improved historic roadway for agricultural purposes; it is the opinion of this court, after hearing all the evidence, examining all the exhibits…that the defendants are not guilty of these offences.

[8] The applicants claim that there was such a laneway here too, which would bring the case even closer to Minas. But the appeal judge noted at para 31 and 33 of his decision:

[31] The Justice of the Peace did not accept the evidence of Stewart Geil that a laneway always had existed through the wetland and that it had not changed much except that some gravel had been put on it. In coming to that conclusion Her Worship considered the very evidence of the Applicant Jason Geil who admitted that he had been cleaning the area through the wetland and had made the laneway wider and longer by cleaning bush, trimming branches and putting gravel on the roadway.

[33] There is nothing before the court to indicate that the photo now sought to be introduced as new evidence was not available at the time of trial. Further and in any event it is clear that upon viewing the photograph it does not assist the Applicants in any productive way as an existing roadway is not readily apparent. Certainly not or near to the extent of the roadway illustrated on Exhibit #1 to the appeal which is an aerial photograph showing the current roadway as of July 13, 2012.

In my view, Minas is accordingly not a conflicting decision.

[9] In relation to leave to appeal leave under s. 131 of the Provincial Offences Act, the respondent agrees that the interpretation of the Provincial Policy Statement and its application to farming raises a question of law. The respondent takes the simple position, however, that the argument that the applicants as farmers are immunized from prosecution by virtue of the Provincial Policy Statement simply has no merit.

[10] The respondent submits that the Provincial Policy Statement gets its status from s. 3 (5) of the Planning Act:

(5) A decision of the council of a municipality, a local board, a planning board, a minister of the Crown and a ministry, board, commission or agency of the government, including the Municipal Board, in respect of the exercise of any authority that affects a planning matter,

(a) shall be consistent with the policy statements issued under subsection (1) that are in effect on the date of the decision; and

(b) shall conform with the provincial plans that are in effect on that date, or shall not conflict with them, as the case may be.

[11] The respondent submits that the subsection plainly provides that the duty of the Conservation Authority to comply with the Provincial Policy Statement is limited, as the Planning Act states, to “the exercise of any authority that affects a planning matter”. The Provincial Policy Statement has no effect on the ordinary exercise of Conservation Authority’s jurisdiction under the Conservation Act in regulating wetlands. This would also explain why trial counsel, who was well-versed in the law having previously acted for the Conservation Authority, did not raise the issue; failing to do so was, the respondent submits, not an instance of incompetence.

[12] The applicants raised three complaints in the factum, being whether the appeal judge provided sufficient reasons for judgment, whether he properly weighed the evidence that was brought before him and whether he properly applied the law to the evidence. In the circumstances of this case, none of these is capable of meeting the test for leave under s. 131 of the Provincial Offences Act. I reach the same conclusion on the proposed legal question; the position to be argued by the applicants has no merit.

[13] The motion for leave to appeal is dismissed.

“P. Lauwers J.A.”