Citation

Citation: Corporation (County of Elgin) v. Nirta, 2012 ONCJ 629

Court and Parties

ONTARIO COURT OF JUSTICE (St. Thomas)

BETWEEN:

R. (THE CORPORATION OF THE COUNTY OF ELGIN) Respondent/Appellant by Cross-Appeal

v.

LOU NIRTA Appellant/Respondent by Cross-Appeal

AND BETWEEN:

R. (THE CORPORATION OF THE COUNTY OF ELGIN) Respondent/Appellant by Cross-Appeal

v.

JOSEPH MORLEY Appellant/Respondent by Cross-Appeal

AND BETWEEN:

R. (THE CORPORATION OF THE COUNTY OF ELGIN) Respondent/Appellant by Cross-Appeal

v.

CLAYTON MORLEY Appellant/Respondent by Cross-Appeal

Decision on Appeal

By the Honourable Madam Justice E. Schnall

Released: August 22, 2012

Appearances

• S. Gibson – Counsel for the Corporation of the County of Elgin
• N. Peel – Counsel for L. Nirta, J. Morley and C. Morley

Decision

SCHNALL, J.

Introduction

[1] The three defendants appeal their sentences, following their convictions at trial on seven counts of breaching the County of Elgin Woodlands Conservation Bylaw 05-03 (the "Bylaw"), after they cut down trees in a right of way (ROW) without complying with the provisions of the Bylaw, in 2009.

[2] The Corporation of the County of Elgin has cross-appealed, seeking an increase in the sentences that were imposed, and in relation to one of the counts, the lifting of the stay and imposition of a conviction.

[3] For ease of reference I will refer to the original defendants (now appellants and respondents on cross-appeal), as "the defendants".

[4] Citations for the cases referred to will be noted at the end.

[5] I have read the transcript of the trial proceedings and related documents and the decision with reasons, as well as written supplementary submissions of both counsel.

Background and Charges

[6] The trial took place before the Justice of the Peace, Her Worship Susan Stewart, on January 14, 2011, and her reasons and decision were delivered on April 1, 2011.

[7] The defendants pleaded not guilty to all counts.

[8] All charges related to the harvesting (cutting down, destruction,) of trees in a right of way in a manner that breached the provisions of the Bylaw, and without complying with the administrative requirements of the bylaw.

[9] The specific charges are set out as Appendix "A" to these reasons.

[10] The defendants were charged individually, on three separate informations, with the identical charges. For ease of reference, I have only included the charges in the name of Mr. Lou Nirta.

[11] To paraphrase the charges, they cut trees other than in accordance with good forestry principles.

[12] The trees were less than the minimum circumference.

[13] They had failed to submit an application, did not post required signs, and failed to notify the Tree Commissioner before starting the harvesting.

[14] Their operations damaged lands and area, and injured trees that were to remain standing.

[15] The trial proceeded with a Statement of Agreed Facts, as to the essential elements of the offences. The court also heard the oral testimony of one of the defendants, Mr. Nirta, as the defence posited a defence of due diligence. The Crown called an expert witness, Mr. Greg Greer, in reply.

Results at Trial

[16] Following the trial, Her Worship found all three defendants guilty of all 7 counts.

[17] She stayed count #1, suspended the sentence on counts 4 and 5, and imposed fines of various amounts on remaining counts, commensurate with what she determined was the degree of liability, respectively, of each of them.

[18] Her Worship imposed the following sentences:

Count 2: Nirta $1,250.00; C. Morley – suspended sentence; J. Morley $2,000.00

Count 3: Nirta $1,250.00; C. Morley $500.00; J. Morley – suspended sentence

Count 4: Nirta, C. Morley, and J. Morley – suspended sentence for all

Count 5: Nirta, C. Morley, and J. Morley – suspended sentence for all

Count 6: Nirta $1,250.00; C. Morley – suspended sentence; J. Morley $1,000.00

Count 7: Nirta $1,250.00; C. Morley – suspended sentence; J. Morley $1,000.00

Total of fines, Mr. Nirta: $5,000.00

Total of fines, Mr. C. Morley: $500.00

Total of fines, Mr. J. Morley: $4,000.00

[19] The suspending of sentence, where ordered, was at the request of the Crown.

The Issues

[20] The issues may be framed as follows:

1. Did the learned Justice of the Peace err in staying any of the charges? In other words, did the principle against registration of multiple convictions, (Kienapple), apply, so as to support the stay of any of the charges?

2. If Kienapple applied, did Her Worship stay the correct charge?

3. Did the learned Justice of the Peace err in imposing the sentences she did? In other words, did the nature of the sentences imposed, being monetary penalties, and the quantum of fines imposed, respectively, on the various counts and on the three defendants, sufficiently address the principles of sentencing of deterrence and as set out in R. v. Cotton Felts?

4. Is the order of counts or charges as set out in an information, reflective of, or definitive, as to either the importance of the various charges or the strength of the prosecution case, such that the first count or charge should supercede the other charges or counts, as an 'umbrella' charge, if a finding of guilt is made?

5. Were the sentences imposed fit in all the circumstances?

The Facts

[21] Her Worship correctly reviewed the facts in her decision so I will review them here only briefly, to set the background and context of the sentence appeals, and to my conclusions where they differ from that of Her Worship, relating to issues of deterrence, and adequacy of the sentences imposed.

[22] Mr. Nirta purchased a parcel of land of approximately 18 acres with a frontage on Lake Erie of 2,000 feet, in the Township of Aldborough, in the County of Elgin. Mr. Nirta was a 90% partner and Mr. C. Morley was a 10% partner in this enterprise.

[23] A survey showed the location of a right-of-way (hereafter "ROW") from the road (Grey Line) to the property. The lands of the ROW and adjacent lands were owned by Mr. Howard Culligan and Lighthouse Developments.

[24] Mr. Nirta and Mr. C. Morley enjoyed the property for some time, gaining access with permission through a neighbouring trailer park. Mr. Nirta then decided to build a cottage on his property.

[25] Mr. Nirta and Mr. C. Morley built the cottage without a building permit. They were served with an Order to comply, dated October 24, 2008, to obtain a building permit.

[26] Mr. Nirta continued to work on the cottage for nine more months, before a stop work order was issued against them relating to the cottage, on May 8, 2009.

[27] The stop work order on the cottage was still in effect at the time of the trial.

[28] They were charged and convicted of a building code violation relating to the construction of the cottage.

[29] In the spring of 2009, Mr. Nirta was communicating with the Lower Thames Valley Conservation Authority. It had certain requirements, communicated to Mr. Nirta by letter dated April 30, 2009, because of the proposed location of the cottage and its proximity to the bluff and erosion concerns. The Conservation Authority required that he obtain an engineering assessment of the integrity of the steel structure of his cottage to ensure it could be moveable in the future, because of the proposed location of the cottage.

[30] None of Mr. Nirta's communications with the Municipality of West Elgin nor the Lower Thames Valley Conservation Authority related to tree cutting in the ROW. None of these authorities had jurisdiction over the tree cutting provisions of the County of Elgin.

[31] Mr. Nirta could not get a building permit unless he had road access to his property. He testified that his only option was to put the road through on the ROW. To do this he had to cut down the trees in the ROW. He directed the other defendant, Mr. Joseph Morley (unrelated to C. Morley) to do this on June 3 and 4th, 2009, without complying with various requirements of the Woodland Conservation Bylaw.

[32] The Tree Commissioner arrived on the site on June 4th, because Mr. Culligan had complained. A stop work order was issued on June 4, 2009. They stopped cutting. Charges were laid, with the offence date of June 4th, 2009.

[33] The engineering approval as to the cottage, as required by the Conservation Authority, was obtained, but not until after the trees were cut. (letter dated June 16, 2011.)

[34] As well, Mr. Nirta could not get a 911 address, unless he had roadway access to his property.

[35] From Mr. Nirta's perspective, he was being forced to jump through a lot of hoops, and obstacles were being put in his way by the various authorities.

[36] In testifying, Mr. Nirta resisted Mr. Gibson's suggestion that he did not investigate or make inquires about necessary permits, so he would not face further restrictions and requirements. Her Worship did not make a finding on this point, and she had the benefit of observing Mr. Nirta in the witness stand, which I do not. She did note that Mr. Nirta made decisions based on what was in his own mind.

[37] Mr. Nirta testified that he did not speak to the Tree Commissioner before cutting trees on June 3 and had taken no steps to investigate the existence of any regulations regarding tree cutting or removal.

[38] The day before he directed Mr. J. Morley to cut trees, Mr. Nirta had had an acrimonious telephone call with Mr. Culligan, the owner of the lands and trees in the ROW. Mr. Culligan expressed his intense opposition to Mr. Nirta planning to put in hydro on the ROW, and entering on the right of way. This heated exchange prompted Mr. Nirta to expedite his plans to cut the trees, which he did the very next day.

[39] Mr. Nirta testified he did not know about Bylaw 05-03, and that no one, - neither the building inspector nor the Lower Thames River Valley Conservation Authority - had told him about it.

[40] Mr. Nirta had sought no legal advice at any time from the date of purchase of the lands to June 4, 2009. He believed he could do whatever he needed to do to get his building permit.

[41] Mr. Nirta needed frontage on Grey Line and wanted the ROW to be considered as an alternative to the frontage, in fulfilment of that requirement. This required a zoning bylaw amendment.

[42] Even as at the date of trial, Mr. Nirta appeared not to have made appropriate inquiries about what he needed to do to proceed with his project. Mr. Nirta testified that he did not really know about needing an amendment to the zoning Bylaw, and which jurisdiction would be involved, although he imagined that the application had been done.

[43] As to Mr. C. Morley's involvement and culpability, Mr. Nirta testified that Mr. C. Morley knew of his difficulties with the project; with the Building inspector; with access to the property; with the problem with the building permit; with the Conservation Authority; and with the stop work order - but he said that Mr. C. Morley did not know of Mr. Nirta's plans to cut down the trees.

[44] Mr. Nirta claimed that his nephew was an arborist who attended at the site and said the trees were infested with the Ash Borer. The evidence of Mr. Greg Greer, the forester retained by the County of Elgin, and accepted by the Justice of the Peace as an expert witness, was that when he inspected the site in August, 2009, there was no evidence of Ash borer infestation.

[45] The relevance of this evidence is negligible as to the culpability of the defendants, since Mr. Nirta never asserted that he cut down the trees because they were diseased. The evidence is more relevant to the amount and nature of the damage that was done, because Mr. Greer said most of the trees were good stock.

[46] Of the 124 trees harvested, 113 were below the minimum circumference for the species, as set out in the Bylaw.

The Defendants' Position on the Appeal

[47] Relying on the Kienapple principle, the defendants seek to lift the stay on count#1 and have a conviction registered, and to have a stay imposed on counts #2 through 7, instead.

[48] On Count #1, Mr. Peel suggests that, as this is the first offence for all three defendants, nothing more than the suspending of sentence is required to address deterrence because Her Worship had imposed a Prohibition Order against all three defendants.

[49] At the conclusion of the evidence, Mr. Peel had argued that count #1 on the information should be considered the ultimate charge, because it was the first count on the information as drafted. He referred to it as the strategical drafting of the information by the prosecution in having count 1 as the prosecution's "best shot". Thus, findings of guilt on the other charges should be stayed.

[50] I know of no support in law for this position, nor was I provided with any legal authority nor case law on the point, and I decline to accept that argument.

[51] In my view, there is no significance to the order in which counts are typed in an information; the first count on any information may be there simply because of chronological order, rather than the strength of the prosecution case.

[52] To the same end, but from a different perspective, Mr. Peel argued that the Kienapple principle against multiple convictions applied in this case for what he classified as essentially one offence, that is, the cutting down of the trees. Mr. Peel argued that although Her Worship correctly ruled that Kienapple did apply, she erred in staying count #1, rather than counts #2 – 7, as he argued that count #1 was "the umbrella charge,": as such, it subsumed the other 6 counts, and thus a conviction should be registered on count #1 only.

The Position of the Crown on the Appeal

[53] Mr. Gibson submits that the learned Justice of the Peace erred in finding that the Kienapple principle applied at all in this case.

[54] He seeks to have the stay lifted on count #1, a conviction registered against all three defendants, with the imposition of fines.

[55] On the remaining counts where fines were imposed, he appeals quantum and seeks higher fines to reflect principles of general and specific deterrence. He argues that the sentences imposed were unfit.

Discussion and Conclusions on the Facts

[56] Her Worship reviewed the evidence and made findings of fact based on the Agreed Statement of Facts and the oral evidence.

[57] I am unable to agree with Her Worship's conclusions on some points, as I considered the oral evidence of Mr. Nirta.

[58] These points relate ultimately to the fitness of sentences imposed by Her Worship.

[59] Specifically, Her Worship concluded that Mr. Nirta and the others believed they had all the permits they needed. Whereas, I find that Mr. Nirta and Mr. C. Morley knew they did not have a building permit, and continued work on construction until being served with a stop work order.

[60] There was no evidence before Her Worship that Mr. Nirta at the outset of the project considered he needed any permits at all. There is no evidence that he addressed his mind to the point, even though he had dealings with the Conservation Authority and the building inspector prior to June 3rd, 2009.

[61] He admitted that he made no inquiries and sought no legal advice nor consultation with legal counsel, before cutting the trees on June 3rd and 4th, 2009.

[62] In other respects, Her Worship apprehended the evidence correctly and understood the submissions of counsel as to the legal analysis.

[63] She correctly determined that Bylaw 05-03 applied to the lands and the facts of the case before her.

[64] As the defendants are not appealing their convictions, I will only briefly note that Her Worship correctly considered the case of R. v. Sault Ste. Marie, addressed the issue of due diligence as a defence, and the appropriate onus of proof on the defendants.

[65] After reviewing the evidence, and in particular the evidence of Mr. Nirta on pages 94 and 95 of the trial transcript, she determined that on a balance of probabilities, Mr. Nirta had failed to persuade the court that he had an honest but mistaken belief in the facts, which if true would find him innocent, nor that he had taken any reasonable steps to meet the definition of due diligence. She noted s. 81 of the Provincial Offences Act, that ignorance of the law is not a defence.

[66] I found no error in her analysis of the law and its application to the facts before her in that regard.

[67] From the start of their project, neither Mr. Nirta nor Mr. C. Morley made any inquiries as to regulations or permits needed. Even after their involvement with the building inspector, and having been charged and convicted for not having a building permit in 2009, and being served with a stop work order as to the cottage, they still took no steps to make inquiries, to inform themselves of what other regulations or prohibitions might be in place for their project. I find that Her Worship did not place sufficient weight on the negative aspects of this conduct in considering specific deterrence.

[68] On the point of due diligence, Her Worship cited an excerpt from page 12, paragraph 30 of the case of Levis (City) v. Tetrault:

"The concept of diligence is based on the acceptance of a citizen's civic duty to take action to find out what his or her obligations are. Passive ignorance (my emphasis) is not a valid defence in criminal law".

[69] On the evidence, I would describe, and do find, the conduct of Mr. Nirta and Mr. C. Morley as something more than 'passive ignorance'. Having had the experience of being charged and convicted with the building permit charge, their failure to take reasonable steps to investigate and make inquiries amounted to wilful blindness.

[70] In the specific case of Mr. Nirta, I would have concluded a blatant disregard for the need to ascertain his rights and obligations relating to the ROW, once he was aware of Mr. Culligan's opposition just the day before the tree cutting. Mr. Nirta proceeded with increased haste to get the trees cut, before anyone could do anything about it, and he directed Mr. Joseph Morley to recommence cutting on June 4th.

[71] Her Worship referred to these circumstances, but did not give sufficient weight to the facts in terms of the need for specific deterrence to be a strong message to Mr. Nirta.

The Kienapple Issue

[72] Mr. Peel, on behalf of all three defendants, argued that the principle set out in the Kienapple case as to the recording of multiple convictions on multiple counts for what is essentially the same crime, ought to apply in this case, such that a conviction ought to be registered against the three defendants on count 1 only, and the remaining counts, 2 to 7, should be stayed.

[73] He argues that counts 2 through 7 are all, respectively, subsumed under the general umbrella of "good forestry practices", which is count #1.

[74] As I listened to oral submissions on the appeal, I inquired of both counsel if the case before me was not unlike a person charged with impaired driving and being also charged with driving without a licence, or without insurance? All three charges would arise out of the same set of circumstances, that is, a person operating a motor vehicle on a public highway, yet each requires different elements to be proved.

[75] In supplementary written submissions, on the point of applicability of the Kienapple decision, Mr. Peel relies on the case of R. v. 925252 Ontario Limited, a decision of Her Worship, Justice of the Peace Avis M. Rodney. Mr. Peel noted that it was referred to in a 2003/2004 publication entitled Legal Emissions, from the "Ontario Ministry of the Attorney General serving the Ministry of the Environment". Both counsel in their respective written supplementary submissions provided me with a brief outline or summary of what transpired before Her Worship.

[76] On two counts, fines were imposed. The third count was stayed. There is no indication of what the third count was, nor any analysis of why it was stayed by the Justice of the Peace. I can draw no conclusions from this submission, and in any event, the decision of the learned Justice of the Peace would not be binding on this court.

[77] Mr. Peel further argues in his written submissions that the analysis relating to multiple convictions in criminal cases must be contrasted with that in regulatory offences.

[78] I respectfully disagree, and refer below to the case of R. v. Fagbemi.

[79] Mr. Peel further suggests that with regulatory offences, if one charge is an umbrella charge, followed by a string of subsidiary charges, then the subsidiary charges should be stayed.

[80] With respect, this argument places the cart well ahead of the horse. The court would first have to determine if any one of the charges is an "umbrella charge". The comparison described by Mr. Peel is not apt to the case before me.

[81] Mr. Gibson referred to the R. v. Prince and R. v. Wigman decisions. He argued that in each of the charges before me, there were sufficient additional or distinct elements, that precluded the application of the Kienapple principle against multiple convictions, and that convictions should be imposed on all seven counts.

[82] In his submissions to the Justice of the Peace, Mr. Gibson submitted, but only as an alternative in terms of sentencing, that if Her Worship had a concern as to the application of Kienapple, it was open for her to impose convictions on all but count #1, and stay that one count.

[83] In fact, that is what Her Worship did.

[84] It is of no assistance, and it does not advance the analysis, to compare criminal case facts with regulatory offences: the egregious facts of rape or murder contrasted to the cutting down of trees in violation of a Bylaw. The reference to criminal cases should be to extrapolate principles of law and evidence, not to rely on the extreme contrast in facts to reduce the penalties, in this case, of breaching the Bylaw.

[85] It is necessary to keep the charges before this court in the context in which they belong, that is, as regulatory offences. The distinction is recognized by prosecutions under the Provincial Offences Act, rather than under the Criminal Code. The seriousness of the offences and consequential sentencing have to be measured on the spectrum of offences under this Bylaw and the POA, not as compared to criminal offences.

[86] Mr. Gibson argued against the application of the Kienapple principle at trial. That was his primary position then, as it is now on the appeal, although he had provided her Worship with alternative remedies and options in sentencing, if she were to adopt Mr. Peel's arguments.

[87] While all 7 charges originate from what Mr. Nirta and the others did (or did not do) in the process before, during and after the cutting of the trees, the court must look at each charge individually, and the specific wording of the Bylaw sections and definitions, to determine if the application of Kienapple applies, as Mr. Peel argues, or is precluded, as Mr. Gibson argues.

[88] As Mr. Gibson argued, referring to R. v. Prince and R. v. Wigman, there must be a factual and legal nexus in all the circumstances of the charges but if there are additional, distinctive elements among the charges, then the application of Kienapple is precluded.

[89] I have reviewed carefully the specific wording of the relevant sections of the Bylaw, which I have attached in Appendix "B".

[90] The learned Justice of the Peace determined that because ss. 2(a)(i) and (ii), make reference to section 5 of the Bylaw, the Kienapple principle should apply.

[91] Respectfully, I disagree and find that Her Worship erred in law.

[92] Section 2 of the Bylaw is the Prohibitions section. It is comprised of sub-paragraphs (a) to (d). Each of these has sub-paragraphs, and some have sub sub-paragraphs.

[93] S. 2(a) under which the defendants are charged, has two sub-paragraphs: (i) Good Forestry; and (ii) circumference limit.

[94] To broadly paraphrase, the prohibition sections provide that no person shall harvest, destroy or injure trees, unless they do so as prescribed by a 'professional forester' and have abided by the administrative/procedural requirements of s. 5.

[95] Here, the defendants had no such prescription by a professional forester. Thus, when they cut the trees, they contravened S. 2(a)(i).

[96] They also contravened s. 2(a)(ii) by cutting trees that did not meet the circumference minimums.

[97] Those are two separate sub-paragraphs, requiring different elements to be proven, such as measurement of circumference.

[98] Similarly, s. 2(d)(ii) (destroy trees that were to remain standing) and s.2(d)(iii) (operations caused excessive damage, etc.) require proof of different elements than s. 2(a)(i), which Mr. Peel argues is the over-arching, umbrella charge.

[99] Count #1, 2, 6, and 7 are in the nature or intent of environment protection.

[100] Counts 3, 4, and 5 are administrative or procedural. The relevant time frames requirements are different for the various charges, whereas there is no time requirement referred to for counts #1 or #2.

[101] Proof that no signs were posted, and that no notice was given to the Tree Commissioner, and that no application was submitted, require entirely different elements to be proven, quite separately from having a "prescription provided by a professional forester".

[102] I find there are sufficient distinctions or distinguishing features in the 7 charges that persuade me that the Kienapple principle against registration of multiple convictions does not apply in this case.

[103] In determining the questions framed as issues 1 and 2 on this appeal, I find that the learned Justice of the Peace erred in law, and that the Kienapple principle does not apply.

[104] A point not raised in argument before Her Worship but referred during the submissions on the appeal is one that relates to the ambiguity of the drafting in some sections of the Bylaw, and the implications as to liability under some of these charges.

[105] Specifically, ss.5(c) and (d) under which the defendants are charged, require those individuals who have submitted an application to post a sign and give notice to the Tree Commissioner, within time frames specified. The wording is worse than awkward – on its face, it does not appear to apply to Mr. Nirta (and thus also the others) in this case, because Mr. Nirta was not a person who had submitted an application.

[106] The need for an application, and the postage of signage and notice to the Tree Commissioner is to protect the process, and thus to enable supervision and enforcement to ensure that things are done right, thus protecting the interests of those directly affected, and of the general public in terms of protection of the environment.

[107] The purpose of a sign would be to alert the neighbours ahead of time, especially Mr. Culligan, the owner of the land and the trees in the ROW, that Mr. Nirta was going to cut trees. It would have then come to light that he had no application and had not notified the Commissioner.

[108] A stop work order could have been imposed before the trees were cut.

[109] Thus I would set aside the finding of guilt relating to all three defendants on count #4 (s. 5(c) – signage) and count #5 (s. 5(d) – notice). However, I consider the absence of notification in any form to be an aggravating factor in what Mr. Nirta did. By his own admission, he speeded up his plan when he became aware of Mr. Culligan's opposition.

Sentences Appealed From, Imposed by the Justice of the Peace

[110] Her Worship acknowledged that the defendants should be held to different levels of culpability, determined by their level of participation.

[111] She correctly determined that Mr. Lou Nirta, as the 90% owner of the lands and project, and as the person who dealt with the Conservation Authority and building inspector, and gave the order to cut trees, was the main driver of the project.

[112] She correctly determined that Mr. Clayton Morley, as only a 10% partner, was less involved.

[113] She determined, however, that he had an obligation to make inquiries, being familiar with all the problems that Mr. Nirta was having with the Conservation Authority and the building inspector, and in fact he himself had already been found guilty of the building permit breach.

[114] She noted correctly that Mr. Joseph Morley is a professional logger and contractor. He should be held to a higher standard than Mr. Clayton Morley in making inquires, as it is his job cutting and skidding cut trees. I find that he should have been on notice that something was not right, when there was no signage visible where it should have been, when he started cutting trees on the right-of-way. As a professional logger, he was not entitled to simply rely on what Mr. Nirta said.

[115] Her Worship issued a prohibition order against all three defendants, prohibiting them from the repetition or continuation of the same offences, as in counts 2 through 7, on these lands.

[116] On counts 4 and 5, Her Worship had suspended sentence on all three defendants, as had been requested by the Crown.

[117] I need not refer to this further, as it is my intention to set aside the findings of guilt and register acquittals for all three defendants on counts 4 and 5.

Principles of Sentencing

[118] The principles of sentencing for regulatory offences are set out in the Court of Appeal decision in R. v. Cotton Felts which was a prosecution under the Ontario Health and Safety Act. In that case, the court stated that the quantum of a fine against a corporation (under that Act) … "will be determined by a complex of considerations, including the size of the company involved, the scope of the economic activity in issue, the extent of the actual and potential harm to the public, and the maximum penalty prescribed by the statute (and) above all.. by the need to enforce the regulatory standards by deterrence."

[119] Her Worship correctly identified these principles. She noted that the three defendants were individuals, not a corporation: a trifling fine for a corporation could be significant for an individual. The destruction or harvesting of the trees was not an economic activity for the defendants, except possibly, she found, for Mr. J. Morley, but not significantly so. Mr. Nirta and Mr. C. Morley did not do it for profit. They did it so that they could get access to their property and erect a cottage. They did it to enhance their use and enjoyment of the property. The fact that Mr. Nirta had no other option than to clear the ROW so he could get access is not a mitigating factor. He failed to comply with regulations that he should have known were in place; nor did he make any inquiries.

[120] While this is not an operation of very wide scope, neither was it insignificant. The harvesting involved 124 trees. It appears that it was only because of the arrival on site of the Tree Commissioner, that the cutting of trees was not more extensive. The scope of the planned activity was quite large: the project would have required more extensive tree clearing, all the way to the property, as shown on the survey plan, but it was stopped part-way. One does not impose sentence on the basis of what could have happened, but the failure to abide by the administrative requirements allowed Mr. Nirta to effect what he did.

[121] The evidence of the expert, Mr. Greer, was that because many of the trees were under-sized, the usual harvesting cycle of 30 to 40 years would be extended to 70 to 100 years. Thus there was actual harm done.

[122] The additional harm that was done, however, was in the damage to the process.

[123] Mr. Gibson argues that Her Worship did not place sufficient weight on the principles of general and specific deterrence.

[124] The County of Elgin, like other municipal corporations, is authorized to pass Bylaws. The Bylaws are to protect all members of the public to ensure that proper procedures are followed. Applications have to be submitted; permits have to be obtained; conditions and requirements have to be complied with. Failure to comply with the process and requirements of Bylaw 05-03 puts the environment at risk and undermines the efficacy of the process and the respect for law.

[125] I find that Her Worship did not accord sufficient weight to the importance of the principle of specific deterrence.

[126] This is particularly true in the case of Mr. Nirta, who in spite of obvious and vehement objection by the owner of the lands, proceeded expeditiously to have the trees cut the next day, without taking any steps to ascertain what he could or could not do on the ROW.

[127] While Her Worship acknowledged that general deterrence is a prime principle here, she did not adequately address it in the quantum of fines imposed.

[128] The fines for these types of breaches of regulatory provisions must be sufficiently high to discourage other individuals from committing the same breaches.

[129] The fines must be significant enough to the individual that it is not simply a fee to be paid for doing what was done. – like a licence fee – ie., just one of the costs of developing the property, in this case.

[130] The defendants come before the court as first time offenders for these charges.

[131] Section 9(d) of the Bylaw provides that the maximum fine for a first offence on some of the charges is $10,000.00 or $1,000.00 per tree, whichever is greater: in this case a maximum of $124,000.00. In all the circumstances, the latter would be highly excessive.

[132] A total of the fines imposed at trial of $5,000 for Mr. Nirta, $500.00 for Mr. C. Morley and $4,000.00 for Mr. J. Morley, however, are inadequate to satisfy the principles of general deterrence of the public and other individuals who would take similar actions. Nor are they sufficient as a specific deterrent to the three defendants. The fines as sentences were unfit in all the circumstances, having regard to the principles set out in Cotton Felts, and the need for general and specific deterrence.

[133] Mr. Peel suggests that the three defendants ought not to be penalized for doing something that would otherwise have been legal had they followed the proper process. That is not the test.

[134] On that point, I note and agree with the decisions referred to by Mr. Gibson in his written supplementary submissions. The case is R. v. Abbott, both at the trial level and at the Court of Appeal of British Columbia. The defendant was charged and convicted of constructing and installing a septic system without appropriate permit or authorization.

[135] He was fined and ordered to remove the septic system. Even in that case where there was no actual harm, the Supreme Court, in dismissing the defendant's appeal, held that the court must apply principles of general and specific deterrence in imposing sentence, to safeguard the environmental protection process.

[136] The defendant's further appeal dealt primarily with a jurisdictional argument for his refusal to remove the sanitary system. The appeal was dismissed by the Court of Appeal. In paragraph 32, the court referred to the sentencing principles set out in Cotton Felts as being appropriate, to provide specific and general deterrence in cases involving the public welfare, and the need to protect the process in regulatory offences.

[137] Mr. Peel argued that since the charges were laid, there has been a change of ownership of the ROW and adjacent lands. He indicated that Mr. Nirta was willing to sit down and discuss the project with his neighbours.

[138] Her Worship viewed these recent developments as a mitigating factor, warranting a lesser penalty for specific deterrence. I cannot agree and I find that the fines imposed were inadequate as a specific deterrent to Mr. Nirta and Mr. C. Morley.

[139] The project is not resolved. The right-of-way is not ready for a road. There is no building permit. Stop work orders are still in place. The proposed discussions with his neighbours may not turn out to Mr. Nirta's satisfaction. The fines imposed by Her Worship are not significant enough to deter Mr. Nirta, because he is a gentleman who appeared in the transcript of his evidence as someone who did what he wanted if he thought it was right, regardless of expressed opposition (as in the telephone call with Mr. Culligan) and without taking time to ascertain what his obligations actually were and regardless of having gone through the experience of being charged with and convicted of the building code violation. He appeared not to have learned anything from the experience of being charged, in that he had no clear knowledge of what he needed to do, or what inquiries to make about the zoning bylaw problem.

[140] These charges do not involve mens rea. They are strict liability offences. However, one must look at Mr. Nirta's conduct in assessing the need for specific deterrence.

[141] At no time in his evidence did Mr. Nirta express any regret at not having taken steps to ascertain what if any permits he needed; what his obligations were with respect to the right of way. In fact, he deflected responsibility onto the building inspector for not telling him he would need a permit to cut the trees. It was not the responsibility of the building inspector to do so.

[142] The purposes of fines and sentencing under the regulatory offences scheme is not to punish the offender but to ensure the safety of the public, protection of the process of the regulatory legislation, and respect for the law. An increased fine, therefore, is not in the mode of punishment, but rather as specific deterrence, from which follows protection of the public and respect for the law, by deterring Mr. Nirta from committing similar offences in the future.

Relevance of the Decision of the Ontario Municipal Board (OMB)

[143] Mr. Nirta applied to the OMB because the Municipality of West Elgin had refused his application to rezone the lands for seasonal use.

[144] In its decision issued August 9, 2011, the appeal was allowed.

[145] In arriving at his decision, Vice-chair Mr. Stefanko noted that the cottage was already 75% built, and that under the unique circumstances of Mr. Nirta's situation, the decision was unlikely to set a precedent.

[146] Moreover, the OMB considered that there was compliance with the provincial policy statement and the official plan, given the involvement of the LTVCA, which had given permission to Mr. Nirta, on June 30, 2009, subject to certain requirements and conditions.

[147] The OMB decision required that a new Site Specific Bylaw was to be prepared, which was to include, among other provisions, a holding provision to ensure that the Municipality is satisfied that "..legal and physical access to the lakefront parcel exists from the Grey Line over the ROW or the Hickory Grove Lands for persons and vehicles…".

[148] It does not confirm anything to do with tree cutting, nor affirm what Mr. Nirta had already done on the ROW. The Bylaw is a County of Elgin Bylaw, and not that of the Municipality of West Elgin, which was the respondent on the appeal.

[149] The OMB decision does not assist the defendants in the case before us. It is irrelevant to the charges on appeal, as it is irrelevant to Mr. Nirta's having failed to abide by the tree-cutting prohibitions and restrictions in the Bylaw.

The Role of the Appellate Judge

[150] Section 117 of the Provincial Offences Act sets outs the power of the appellate court.

[151] S. 122 of the Act provides the options available to the appellate judge in a sentencing appeal. These include dismissal of the appeal, or variation of the sentence imposed within the limits prescribed for that offence. The appellate court can impose a sentence de novo, if it finds the sentence appealed from as being unfit, but it ought not to simply tinker with the sentence imposed.

[152] Regard must be had to the nature of the offence, the maximum fines prescribed, and the circumstances of the offender.

[153] The decision of Judge Fairgreave in R. v. Fagbemi (at paragraph 25) confirms that the principles set out in the criminal case of R. v. Turcotte, apply equally to prosecutions under provincial offences.

[154] In Turcotte, Catzman, J.A., referred to a number of decisions, on the point that the appellate judge, on a sentence appeal, should give considerable deference to the trial judge's decision, and should only intervene to vary the sentence if the sentence is demonstrably unfit, or clearly unreasonable, or where there has been an error in principle, or the trial judge has over-emphasized relevant factors; or, I would add, has under-emphasized relevant factors.

[155] These all apply in the case before me, resulting in a sentence that is unfit.

Ability to Pay Fines

[156] There was no specific documentation presented to the court as to the ability of the defendants to pay fines. Her Worship noted that Mr. Nirta was able to construct a seasonal dwelling.

[157] I find there was more than this evidence.

[158] Mr. Nirta paid $8,400.00 to the engineering company for their assessment and report. He did not testify that this was an onerous amount.

[159] Mr. Nirta is a retired individual. He appears to have sufficient financial resources to buy the property as a 90% owner, develop it, and pay associated expenses. He testified that he owns other property, farm property in another jurisdiction. He testified that the neighbour offered him $450,000 for the lands, some indication of the value of the property he had bought.

[160] Mr. J. Morley runs his own business of logging. The fines should not be so onerous as to be crippling, but they must be significant enough to be a deterrent in the future.

[161] I find there is ability to pay increased monetary penalties.

Conclusion

[162] In summary, I find that the Kienapple principle does not apply.

[163] The appeal of the three defendants is dismissed.

[164] The appeal of the County of Elgin is allowed.

[165] Accordingly, the stay on count #1 is lifted and a conviction registered against all three defendants.

[166] The findings of guilt on counts #4 and 5 are set aside and a finding of "not guilty" registered as against all three defendants.

[167] I make an additional prohibition order, on the same terms as previously ordered by Her Worship, with respect to count #1, as against all three defendants.

[168] The sentences imposed by Her Worship S. Stewart are varied as follows:

Mr. Nirta:

• Count #1: a fine of $4,000.00
• Count #2: a fine of $4,000.00
• Count #3: a fine of $7,500.00
• Counts #4 and 5: not guilty
• Count #6: a fine of $1,000.00
• Count #7: a fine of $1,000.00

Mr. C. Morley:

• Counts #1, 2, 6, and 7: suspended sentence
• Count #3: a fine of $1,500.00
• Counts #4 and 5: not guilty

Mr. J. Morley:

• Count #1: a fine of $2,500.00
• Count #2: a fine of $3,500.00
• Count #3: suspended sentence
• Counts #4 and 5: not guilty
• Count #6: a fine of $1,000.00
• Count #7: a fine of $1,000.00

[169] All fines are to be paid on or before February 28th, 2013. The defendants shall receive credit for any fines already paid pursuant to the order of Her Worship S. Stewart. I will entertain an application to extend time, if required.

Justice E. Schnall

Released: August 22, 2012

Appendix A: The Charges

Count 1: That Lou Nirta, on or about the 4th day of June 2009, at Part Lot 4, Concession 14, Municipality of West Elgin (formerly Township of Aldborough), County of Elgin, did commit the offence of harvest, destroy or injure living trees except in accordance with good forestry practice, contrary to By-Law No. 05-03 for the County of Elgin (Woodlands Conservation By-Law) and in particular s. 2(a)(i) thereof.

Count 2: And further that the said Lou Nirta, on or about the 4th day of June 2009, at Part Lot 4, Concession 14, Municipality of West Elgin (formerly Township of Aldborough), County of Elgin, did commit the offence of harvest, destroy or injure living trees which, by species, had not attained the minimum circumference measurement at a specified point of measure as referenced to and set forth in Schedule "A" to By-Law No. 05-03 for the County of Elgin (Woodlands Conservation By-Law), contrary to said By-Law 05-03 for the County of Elgin (Woodlands Conservation By-Law) and in particular ss. 2(a)(ii) and 2(b)(iii) thereof.

Count 3: And further that the said Lou Nirta, on or about the 4th day of June 2009, at Part Lot 4, Concession 14, Municipality of West Elgin (formerly Township of Aldborough), County of Elgin, did commit the offence of harvest, destroy or injure trees without completion and submission of an application to harvest, destroy, or injure trees, contrary to By-Law 05-03 for the County of Elgin (Woodlands Conservation By-Law) and in particular s. 5(a) thereof.

Count 4: And further that the said Lou Nirta, on or about the 4th day of June 2009, at Part Lot 4, Concession 14, Municipality of West Elgin (formerly Township of Aldborough), County of Elgin, did commit the offence of harvest, destroy or injure trees without erection and display of sign prescribed in By-Law No. 05-03 for the County of Elgin, contrary to By-Law 05-03 for the County of Elgin (Woodlands Conservation By-Law) and in particular s. 5(c) thereof.

Count 5: And further that the said Lou Nirta, on or about the 4th day of June 2009, at Part Lot 4, Concession 14, Municipality of West Elgin (formerly Township of Aldborough), County of Elgin, did commit the offence of harvest, destroy or injure trees without having notified Elgin County Tree Commissioner of an intention to commence such operations, contrary to By-Law 05-03 for the County of Elgin (Woodlands Conservation By-Law) and in particular s. 5(d) thereof.

Count 6: And further that the said Lou Nirta, on or about the 4th day of June 2009, at Part Lot 4, Concession 14, Municipality of West Elgin (formerly Township of Aldborough), County of Elgin, did commit the offence of operate vehicle, equipment or machinery or conduct operations in such a manner or at such a time that results in excessive damages to soil, wetlands, or natural areas or portions of the woodlands, contrary to By-Law 05-03 for the County of Elgin (Woodlands Conservation By-Law) and in particular s. 2(d)(iii) thereof.

Count 7: And further that the said Lou Nirta, on or about the 4th day of June 2009, at Part Lot 4, Concession 14, Municipality of West Elgin (formerly Township of Aldborough), County of Elgin, did commit the offence of intentionally destroy or injure trees that were to remain standing after the harvest of trees was completed, contrary to By-Law 05-03 for the County of Elgin (Woodlands Conservation By-Law) and in particular s. 2(d)(ii) thereof.

Appendix B: Relevant Sections of County of Elgin Woodlands Conservation Bylaw 05-03

Being a By-law to Prohibit or Regulate the Harvest, Destruction or Injuring of Trees in the County of Elgin

1. Definitions

(t) "Good Forestry Practices" means the proper implementation of harvest, renewal and maintenance activities known to be appropriate for the forest and environmental conditions under which they are being applied and that minimize detriments to forest values including significant ecosystems, important fish and wildlife habitat, soil and water quality and quantity, forest productivity and health, and the aesthetics and recreational opportunities of the landscape, and, without limiting the generality of the foregoing, Good Forestry Practices permits the harvest of trees that:

• have been damaged by disease, insects, wind, ice, fire, lightning, or other natural causes to an extent that the health of such trees is likely to further deteriorate and can be assessed as such;
• have been assessed and identified for removal to prevent disease or insects from spreading to other trees;
• are cut in accordance with Provincial Silvicultural Guidelines as referred to in the Forest Operations and Silvicultural Manual and its revision prepared under the authority of the Crown Forest Sustainability Act, S.O. 1994, c. 25; and/or
• are marked and cut as part of a Woodlands Management Plan by way of a prescription approved by a Registered Professional Forester or Associate Member in good standing.

2. General Prohibitions

(a) Except as provided in section 3, no person through their own actions or through any other person shall harvest, destroy or injure any living tree unless the person who is harvesting, destroying or injuring trees have done so in accordance with:

(i) Good Forestry

The person who is harvesting, destroying or injuring trees does so in accordance with Good Forestry Practices as prescribed by:

a) a Registered Professional Forester in good standing with the Ontario Professional Foresters Association; or

b) an associate member in good standing of the Ontario Professional Foresters Association, and

the person who is harvesting, destroying, or injuring trees has abided by section 5 below; or

(ii) Circumference Limit

The person who is harvesting, destroying, or injuring trees has only harvested, destroyed, or injured trees which have attained, at the specified point of measurement, the circumference measurement which equals or is greater than the minimum circumference prescribed for the species in Schedule "A" hereto and the person who is harvesting, destroying, or injuring trees has abided by Section 5 below.

(b) In addition to and/or notwithstanding that set forth in Section 2(a) above,

(iii) Except in accordance with Section 2(a)(i) or Section 3, no person through their own actions or through any other person shall harvest, destroy, or injure any living tree having a circumference at the specified point of measurement less than that referenced in and set forth in Schedule "A" hereto;

(d) A person shall not:

(ii) harvest unnecessarily or intentionally destroy or injure any tree that is to remain standing after the harvest of trees is completed;

(iii) operate a vehicle, equipment, or machinery or conduct their operations in such a manner or at such time that results in excessive damage to the soil, wetlands, or natural areas or portions of the woodlands;

5. Notification/Application (Permission by Notice of Intent)

(a) Every owner of woodlands or person acting on behalf of the owner who intends to harvest, destroy, or injure trees personally or through another person under Section 2(a)(i) or Section 2(a)(ii) of this By-Law shall complete and submit to the Clerk an application to harvest, destroy, or injure trees as prescribed in Schedule "F" hereto not less than five (5) days prior to the commencement of such harvest, destruction, or injury.

(c) Any person who has submitted an application to harvest, destroy, or injure trees in accordance with Subsection 5 above shall also erect and display a sign in the form as outlined in Schedule "K" hereto at the entrance at the adjoining roadway to the lands where the harvest, distribution, or injury of trees is to occur, which signs to be clear and visible to all persons, erected prior to the commencement of such operations and remain erected in such place until five (5) days after the completion of such operations.

(d) Any person who has submitted an application to harvest, destroy, or injure trees pursuant to Subsection 5(a) above shall notify the Officer at least twenty-four (24) hours prior to the start of such harvest, destruction, or injury of trees.

Appendix C: Case References

• Levis (City) v. Tetrault, 2006 SCC 12
• R. v. Kienapple
• R. v. 925252 Ontario Limited, Ministry of the Environment Legal Emissions 2003/2004
• R. v. Fagbemi, [2000] O.J. No. 2550
• R. v. Prince
• R. v. Wigman
• R. v. Abbott, [2005] B.C.J. No. 2339
• R. v. Abbott, [2008] B.C.J. No. 824 (B.C.C.A.)
• R. v. Sault Ste. Marie (City)
• R. v. Turcotte
• R. v. Cotton Felts