Court File and Parties

Court File No.: Atikokan Date: 2012-03-22 Ontario Court of Justice

Between: Ontario Ministry of Natural Resources — AND — Carl Gustafson

Before: Justice of the Peace P. Clysdale-Cornell

Heard on: January 31, 2012

Reasons for Judgment released on: March 22, 2012

Counsel:

• Kevin Elliott, for the prosecution
• The defendant Carl Gustafson on his own behalf

Judgment

JUSTICE OF THE PEACE CLYSDALE-CORNELL:

[1] This is my judgement in the matter of Carl Gustafson. Mr. Gustafson stands charged that on or about the 10th day of June, 2011 at Norway Lake, Unorganized Territory, Judicial District of Kenora, Northwest Region did commit the offence of being the owner of a Polaris Sportsman off road vehicle, fail to surrender evidence of insurance to a peace officer within seventy-two hours contrary to section 15(4) of the Off Road Vehicle Act.

[2] Section 15(4) of the Off-Road Vehicle Act of Ontario reads:

Every owner of an off-road vehicle that is driven on land other than land that the owner occupies shall, upon request of a peace officer, surrender, for inspection, within seventy-two hours after the request is made, evidence that the vehicle was insured under a motor vehicle liability policy in accordance with the Insurance Act at the time it was driven.

[3] Mr. Gustafson allegedly drove his off-road vehicle into a campsite on Norway Lake where a group of people were camping on Crown land under the auspices of the Ontario Ministry of Natural Resources (MNR) 21 Day Free Use Policy of Crown Land. At the time, two MNR Conservation Officers were conducting compliance checks under the authority of the Ontario Fish and Wildlife Conservation Act. This included identifying all people at the campsite as well as any fishing licenses they may have. Mr. Gustafson did not present any identification and indicated that he was not fishing and thus no fishing license was needed.

[4] Under the authority of section 17(5) of the Off Road Vehicle Act of Ontario, Mr. Gustafson was arrested by one of the Conservation Officers. Verbal identification (which was confirmed by the Communication Centre) was given by Mr. Gustafson and he was subsequently released. There was no license plate on the off-road vehicle driven by Mr. Gustafson so the Conservation Officers were unable to confirm ownership at that time. As well, Mr. Gustafson was given 5 days to provide proof of insurance to the MNR Conservation Officers as required under Section 15 of the Off-Road Vehicle Act. When no proof of insurance was filed in the time given, Mr. Gustafson was charged with failing to provide evidence of insurance pursuant to the Off Road Vehicle Act of Ontario.

[5] The Court has carefully reviewed all the evidence before it on this matter. There is very little agreement on any of the issues.

[6] Mr. Gustafson asserts that as occupier of the campsite under the authority of the Ontario Ministry of Natural Resources 21 Day Free Use Policy of Crown Land, Section 15 of the Off-Road Vehicle Act requiring him to provide proof of insurance does not apply to him. Mr. Gustafson also raised issues in the context of the Occupiers Liability Act to support his defence that he was the legal occupier of the land near Norway Lake on June 10, 2011. As well, Mr. Gustafson asserts that Section 17(5) of the Off Road Vehicle Act of Ontario authorizing his arrest does not apply since there was no request or signal by either of the Conservation Officers for him to stop – his stop was voluntary.

[7] Mr. Gustafson has also informally raised a number of Charter Issues during both cross-examination and in the case law that he has presented to the court during final submissions. These issues include:

• Was Mr. Gustafson unlawfully detained under Section 9 of the Charter during his arrest?
• Was his right to remain silent and not present identification breached during the incident?
• Was there an unlawful search of the saddle-bag by the Conservation Officer under Section 8 of the Charter while he was detained?

Identity and Vehicle

[8] The court is satisfied that Carl Gustafson is the driver of the off road vehicle driven into the camp along Norway Lake on June 10, 2011. Mr. Gustafson's identity is supported by his verbal identification after his arrest, confirmation by the Communications Centre and by Exhibit 3 which confirms Mr. Gustafson's address as given to the Conservation Officers during a visit to both his father's home (the address Mr. Gustafson gave the officers on June 10th) and also during a visit to his home at 160 Dog Lake Road, Thunder Bay. The Court is also satisfied that Mr. Gustafson was the driver of the vehicle. Since there is no definition of Driver under the Off-Road Vehicle Act, the Court relies on the definition contained in The Dictionary of Canadian Law, Third Edition:

Driver: a person who drives or is in actual physical control of a vehicle...

[9] The facts of this case support the view that Mr. Gustafson had the actual control of the off-road vehicle that entered the campground on June 10, 2011. As well, after viewing Exhibit #2, the photograph of the vehicle that Mr. Gustafson was driving, the court is satisfied that the vehicle that Mr. Gustafson was driving was an off-road vehicle as per the definition of off-road vehicle under Regulation 862 section 3(1.1) made under the Off-Road Vehicle Act of Ontario:

3(1.1) Vehicles designed for use on all terrain, commonly known as all-terrain vehicles, that have steering handlebars and a seat that is designed to be straddled by the driver.

Occupier Status

[10] Mr. Gustafson asserts that as an occupier of the Crown Land, many of the requirements of the Off-Road Vehicle Act do not apply. The recent "Occupy" movement has led to some confusion about the legal meaning of this term.

[11] The Off-Road Vehicles Act of Ontario defines occupier as:

(a) A person who is in physical possession of the land, or

(b) A person who has responsibility for and control over the condition of land or the activities there carried on, or control over persons allowed to enter the lands,

even if there is more than one occupier of the same land.

[12] The Occupiers' Liability Act has a similar definition substituting the word "premises" for the word "land".

[13] In this situation, the land in question is Crown land or Public land. As such, the Court looks for guidance to the Dictionary of Canadian Law, Third Edition.

Occupied Public Land: Public land held by a person under a disposition from the Crown.

[14] In the case before the Court, there is no indication that the 21 Day Free Use Permit is a formal disposition from the Crown. No fees were paid for the use and there was no formal contracts signed. As such, the Crown retains physical possession of the land and is responsible for all activities carried out on that land. Thus, Mr. Gustafson was not an occupier of the land in a legal sense thus there is no exemption under Section 15 of the Off Road Vehicle Act of Ontario.

Charter Issues

[15] Mr. Gustafson also raised concerns about his arrest and whether it was a lawful arrest. He presents the case of R. v. Harris, 2007 ONCA 574 to support his view. This case involved an incident related to a Highway Traffic Act stop. In that case, the Ontario Court of Appeal ruled that the police officer didn't have the authority to request identification from and then detain the passenger of the vehicle. The case before the Court is very different since it involves the driver of a vehicle and not a passenger, and different legislation. Thus R. v. Harris has limited application to the situation involving Mr. Gustafson.

[16] Mr. Gustafson also presented the court with the case of R. v. Harrison, 2009 SCC 34. He specifically highlighted paragraph 11 where the Superior Court Justice held that

...the initial detention of the applicant was premised on a mere hunch or suspicion rather than reasonable grounds within the meaning...

[17] In the case before the court, Mr. Gustafson's arrest was not triggered by a hunch or suspicion. It was triggered because he refused to identify himself to the Conservation Officers. Conservation Officers are given extensive authority under the Fish and Wildlife Conservation Act to ensure that the natural resources in this province are protected. This includes reviewing documentation of anyone suspected of hunting or fishing in Ontario. Conservation officers are also deemed to be peace officers under the Off-Road Vehicle Act of Ontario.

Peace officer: includes a police officer, conservation officer or other person employed for the preservation and maintenance of the public peace or any officer appointed for enforcing or carrying out the provisions of this Act.

[18] As such, they have the authority of arrest under Section 17(5) of the Off Road Vehicle Act of Ontario. The intent of Section 17 is to prevent drivers of off-road vehicles from playing havoc with the public peace. Its intent is to ensure that law enforcement officials and land owners have a legal right to gather identification from drivers. Whether the stop was forced or voluntary is not important. Section 17(4) of the Off-Road Vehicles Act is clear that every driver has a responsibility to provide identification if requested. When Mr. Gustafson refused to identify himself to the Conservation Officers, they had a legal right to arrest pursuant to Section 17(5) of the Act. Thus R. v. Harrison does not apply.

[19] Finally, Mr. Gustafson filed the case of R. v. Grant, 2009 SCC 32 with the Court, highlighting paragraphs 16, 17, 21, 25, 28, 31, and 32. All focus on the effect of arbitrary detention on an individual. R. v. Grant has limited application to the situation before the Court. There were no incriminating statements gathered during Mr. Gustafson's detention. The detention was for the sole purpose of collecting personal identification from Mr. Gustafson as required by Section 17(5) of the Off-Road Vehicle of Ontario. Once that information was collected, as required by the legislation, Mr. Gustafson was released from custody. Mr. Gustafson was not unlawfully detained and his rights under section 9 of the Charter were not infringed.

[20] The Court would agree that the search by the Conservation Officer of the saddle-bag of the off-road vehicle driven by Mr. Gustafson was a breach of Mr. Gustafson's Section 8 Charter rights. This search was for the purpose of finding documentation for the off-road vehicle and identification of Mr. Gustafson. Permission was not granted for the search and the plain view doctrine of search and seizure do not apply. Although this action was a breach of Mr. Gustafson's Charter rights, no evidence was found or seized so nothing turns on this search.

Insurance Requirement and Ownership

[21] Mr. Gustafson has been charged under Section 15(4) of the Off Road Vehicle Act of Ontario. This section applies to owners of off-road vehicles being required to present evidence of insurance. It is clear from the evidence presented to the Court that Mr. Gustafson did not present any evidence of insurance either at the time of the stop nor 5 days afterwards.

[22] The prosecution presents Exhibit 2 and 3 as evidence that Mr. Gustafson was the owner of the off-road vehicle he was driving on June 10, 2011. Exhibit 2 is a photograph of the vehicle, taken that day. It has an axe attached to the front with the word "Gus" written on it. Exhibit 3 is documentation from the Ontario Ministry of Transportation describing a similar off-road vehicle registered to Mr. Gustafson. There is no direct evidence of ownership by way of either a license plate or VIN number thus the element of ownership has not been proven.

Included Offence

[23] If the element of ownership has not been proven, the prosecution has asked to Court to consider the included offence of Section 15(3) of the Off-Road Vehicle Act of Ontario which reads:

Every driver of an off-road vehicle who is not owner thereof shall, upon the request of a peace officer, surrender for inspection evidence that the vehicle is insured under a motor vehicle liability policy in accordance with the Insurance Act.

[24] The Court believes that all the elements of the included offence of Section 15(3) of the Off-Road Vehicle Act of Ontario have been proven. The Court makes a finding of guilty under Section 15(3) and a conviction is entered.

Released: March 22, 2012

Signed: "Justice of the Peace P. Clysdale-Cornell"