COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Ontario Corporation 1796926, 2016 ONCA 612
DATE: 20160804
DOCKET: M46522 (M46479)
Gillese J.A. (In Chambers)
BETWEEN
Her Majesty the Queen
Responding Party
and
Ontario Corporation 1796926 c.o.b. Ontario Outdoor Recreational Alliance
Moving Party
Counsel:
Jonathan M. Poitras, for the moving party (by teleconference)
Sunny Zhai, for the responding party
Heard: July 29, 2016
ENDORSEMENT
[1] Ontario Corporation 1796926 c.o.b. as Ontario Outdoor Recreational Alliance (“OntORA”) was convicted, by a justice of the peace, of offences under s. 28 of the Public Lands Act, R.S.O. 1990, c. P.43 (the “PLA”) and s. 10(1)(a) of the Fish and Wildlife Conservation Act, 1997, S.O. 1997, c. 41 (the “FWCA”).
[2] OntORA unsuccessfully appealed the convictions.
[3] OntORA wishes to now appeal to this court but cannot do so without leave. Accordingly, it brings this motion for leave to appeal.
OVERVIEW
[4] The following facts are drawn from the agreed statement of facts entered at trial, on the consent of the parties.
[5] OntORA is an organization of concerned outdoors people from across Ontario who joined together because they believed the Ministry of Natural Resources and Forestry (the “Ministry”) has established “abusive” policies that “set aside vast areas of Crown land and lakes for the exclusive use of paying tourists”.
[6] During the summer of 2011, OntORA organized a public protest to be held on August 20, 2011, in Foleyet. The focus of the protest was to be the re-opening of the road/trail to Oswald Lake (the “Lake”), a designated tourism lake. A tourist camp operates on the Lake, catering to fly-in tourists who seek a remote fishing experience.
[7] In the 1970s and 1980s, roads were built west of the Lake to facilitate forestry operations. Over the following thirty years, there were occasional problems with unauthorized roads built to the Lake. When these roads came to the attention of the Ministry, signs were installed barring their use for motorized access to the Lake. A berm was installed on one part of the road/trail in question to try and restrict traffic. It naturally grew in over the years such that by 2010, the road/trail was used only by those travelling on foot or by ATVs.
[8] Further, in 2010, Ministry staff decommissioned the last 400 meters of the road/trail by cutting trees and laying them across it.
[9] The road/trail is located on Crown land under the PLA.
[10] As mentioned, the focus of the public protest organised by OntORA for August 2011 was the re-opening of the road/trail. The intention was to meet in Foleyet and then drive to the road/trail and clear it.
[11] On August 20, 2011 – the date of the protest – there were four Ministry signs prohibiting the use of vehicles to gain access to the Lake, two of which were located on the road/trail.
[12] Following the public protest in Foleyet, a group of 20-25 men arrived at the road/trail as part of the protest. For the most part, these men travelled on ATVs. Using chainsaws, they removed the trees the Ministry had laid across the road/trail. Some of the men then proceeded to the Lake where they “symbolically” cast fishing lines in the water.
[13] As a result of these actions, OntORA was charged with occupying or using public lands or a road in contravention of a notice given under the PLA thereby committing an offence pursuant to s. 28(3) of the PLA. It was also charged with trespass to property for the purpose of fishing, contrary to s. 10(1)(a) of the FWCA.
[14] At the relevant times, ss. 28(1) and (3) of the PLA read as follows:
- (1) The Ministry may give notice prohibiting, controlling or governing,
(a) the possession, occupation or any use or uses of public lands or roads under the jurisdiction of the Minister; or
(b) the parking of vehicles on public lands or the roads described in clause (a).[^1]
(3) A person is guilty of an offence if the person possesses, occupies or uses any public lands or a road in contravention of a notice given under subsection (1) or parks a vehicle on public lands or a road in contravention of any such notice.
[15] On September 10, 2014, Justice of the Peace T.A. Hodgins convicted OntORA of the offences. Among other things, he found that the portion of the road/trail btween the berm and the Lake (which OntORA had used to access the Lake) was no longer a road but, in fact, a trail. He made this finding based on the agreed statement of facts, the testimony of witnesses, and the videos of the trail. He found, given the berm preventing vehicular access and the growth of natural vegetation, that the trail/road could no longer be considered a road at the time of the offences.
[16] OntORA appealed the convictions.
[17] On August 4, 2015, Justice Boucher (the “Appeal Court Judge”) dismissed the appeal and upheld the convictions.
[18] If granted leave to appeal, OntORA will argue that the lower court erred in finding that:
- the road/trail which OntORA used to access the Lake was not a road; and
- the Ministry could close the road or limit the public’s right to access the road under s. 28 of the PLA.
[19] For the reasons that follow, leave is refused and the motion dismissed.
THE TEST FOR LEAVE
[20] To obtain leave to appeal, OntORA must meet the requirements set out in ss. 131(1) and (2) of the Provincial Offences Act, R.S.O. 1990, c. P.33. Sections 131(1) and (2) read as follows:
- (1) A defendant or the prosecutor or the Attorney General by way of intervention may appeal from the judgment of the court to the Court of Appeal, with leave of a judge of the Court of Appeal on special grounds, upon any question of law alone or as to sentence.
(2) No leave to appeal shall be granted under subsection (1) unless the judge of the Court of Appeal considers that in the particular circumstances of the case it is essential in the public interest or for the due administration of justice that leave be granted.
[21] On a plain reading of ss. 131(1) and (2), the test for granting leave is stringent. Thus, leave should be granted only sparingly. Section 131(1) restricts leave to questions of law alone or as to sentence. (Sentence is not in play in this matter so will not be referred to again.) Further, s. 131(2) dictates that leave shall not be granted unless the court considers that it is essential in the public interest or for the due administration of justice.
ANALYSIS
The First Proposed Ground of Appeal
[22] The first proposed ground of appeal challenges the finding of the lower court that a part of the road/trail which OntORA had used to access the Lake was no longer a road but, instead, was a trail. Arguably, this finding is a question of fact alone but, at its highest, it is a question of mixed fact and law.
[23] As noted above, s. 131(1) limits leave to being granted on questions of law alone. The first proposed ground of appeal is not a question of law alone. Consequently, leave must be refused on the first proposed ground of appeal.
[24] In any event, this ground of appeal is of no moment. Whether the signs were posted on a road or a trail does not matter because s. 28(1) applies to “public lands” as well as “roads”. There can be no question that the road/trail is located on public lands. The agreed statement of facts stipulates that the road/trail is located on Crown land under the PLA.
The Second Proposed Ground of Appeal
[25] The second proposed ground of appeal challenges the lower court’s determination that the Ministry had the right to close the road or limit the public’s right to access it under s. 28 of the PLA. If leave is granted, OntORA would argue that the Ministry did not have that power. It would contend that the public was granted a right to public passage over the road and that those rights remain unless the road is closed under s. 52 of the PLA. OntORA says that the evidence is “clear” that the proper process was not followed.
[26] Again, the second proposed ground of appeal does not appear to raise a question of law alone. However, and in any event, to the extent that it raises a question of statutory interpretation, in my view, it is not a question whose resolution is essential in the public interest or for the due administration of justice.
[27] In Ontario (Labour) v. Enbridge Gas Distribution Inc., 2011 ONCA 13, 328 D.L.R. (4th) 343, Watt J.A. explained, at para. 36:
Grounds of appeal that raise issues of statutory interpretation often have application beyond the factual idiosyncrasies of individual cases. But simply phrasing the proposed ground of appeal as a question of statutory interpretation is not an open sesame to leave to appeal. The subject-matter of the statute, as well as the nature and extent of its influence on our daily activities, is of importance. The influence of the statute must be such that its interpretation rises to the threshold of “essential in the public interest” or “essential…for the due administration of justice”. [Citation omitted.]
[28] This reasoning applies in the present case.
[29] OntORA’s conviction under s. 28 of the PLA was the result of a straightforward application of s. 28 that was not dependent on s. 52. Section 28(1) empowered the Ministry to give notice “prohibiting, controlling or governing” the occupation or use of public lands or roads. That notice was given in the form of posted signs on the road/trail. The road/trail was public lands. OntORA occupied and/or used the road/trail in contravention of the notice. Therefore, it was guilty of an offence under s. 28(3).
[30] On the record before me, the proposed appeal does not raise any issue significant enough that granting leave is essential in the public interest or for the due administration of justice, as required by s. 131.
DISPOSITION
[31] For these reasons, the motion for leave to appeal is dismissed.
“E.E. Gillese J.A.”
[^1]: The Appeal Court Judge erroneously quoted a prior version of s. 28(1) in his reasons.