Court File and Parties

Court File No.: Halton, Central West Region, 10-793

Ontario Court of Justice

In the Matter of: An appeal under section 122 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

Halton Region Conservation Authority Appellant

— And —

J. Michael Hanna and Susan Carol Hanna Respondents

Before: Justice Alan D. Cooper

Heard on: July 27 & August 20, 2012

Reasons for Judgment released on: November 19, 2012

Counsel:

• Kenneth E. Jull for the Appellant
• Susan D. Rogers for the Respondents

Introduction

On appeal by the Halton Region Conservation Authority from the sentences imposed by Her Worship Justice of the Peace Lina M. Mills on January 24, 2011.

1.0: Introduction

[1] J. Michael Hanna and his wife Susan Hanna were jointly charged with Brejnik Fine Homes Inc. and Kevin Webster Designs Inc., with one count each, in an information sworn on February 26, 2010. Between the dates of April 25 and October 2, 2008, they are alleged to have carried out new construction without a permit on the Hanna house at 472 Indian Road in Burlington, which was in a designated erosion hazard zone, and which was contrary to section 28(1) of the Conservation Authorities Act, R.S.O. 1990, c.27, as amended, and contrary to Regulation 162/06, Section 2(1)(a) of the same Act, thereby committing offences under section 28(16) of the Conservation Authorities Act.

The actual wording of the charge against each of the Respondents is as follows:

"Did commit the offence(s) of: Contravene a regulation made pursuant to Section 28(1) of the Conservation Authorities Act, R.S.O. 1990, c.27, to wit: Regulation 162/06, Section 2(1)(a):

Have undertaken development in or on the areas of jurisdiction of the Authority (Halton Region Conservation Authority) that are adjacent or close to the shoreline of the Great Lakes-St. Lawrence River System (to wit Burlington Bay-Lake Ontario) that may be affected by flooding, erosion or dynamic beach hazard, including the area from the furthest offshore extent of the authorities boundary to the furthest landward extent of the aggregate of the following distances:

ii) the predicted long term stable slope projected from the existing stable toe of the slope or from the predicted location of the toe of the slope as that location may an [sic] have shifted as a result of shoreline erosion over a 100 year period,

iv) allowance not to exceed 15 meters inland

And Further

Permit another person to undertake development in or on the areas of jurisdiction of the Authority (Halton Region Conservation Authority) that are adjacent or close to the shoreline of the Great Lakes-St. Lawrence River System (to wit Burlington Bay-Lake Ontario) that may be affected by flooding, erosion or dynamic beach hazard, including the area from the furthest offshore extent of the authorities boundary to the furthest landward extent of the aggregate of the following distances:

ii) the predicted long term stable slope projected from the existing stable toe of the slope or from the predicted location of the toe of the slope as that location may an [sic] have shifted as a result of shoreline erosion over a 100 year period,

iv) allowance not to exceed 15 meters inland

and thereby did commit offences contrary to: Conservation Authorities Act R.S.O. 1990, c.27 as amended Section 28(16)"

[2] On February 26, 2010, pleas of guilty were entered by all four defendants. The learned trial judge accepted a joint submission and imposed a fine of $7,500.00 on Brejnik Fine Homes Inc., and a fine of $2,500.00 on Keven Webster Designs Inc. There was no joint submission concerning Mr. and Mrs. Hanna and a sentencing hearing took place which lasted some 14 days, and culminated on January 24, 2011. The Crown had sought a removal order for the new construction but the Hannas were each ordered to pay a $5,000.00 fine and each was subject to a probation order for 2 years under section 72 of the Provincial Offences Act, with a condition that they reconstruct a seawall on their property.

2.0: Statutory Framework

[3] Section 28 of the Conservation Authorities Act, R.S.O. 1990, c.27, as amended, provides as follows:

Regulations by authority re area under its jurisdiction

28. (1) Subject to the approval of the Minister, an authority may make regulations applicable in the area under its jurisdiction,

(a) restricting and regulating the use of water in or from rivers, streams, inland lakes, ponds, wetlands and natural or artificially constructed depressions in rivers or streams;

(b) prohibiting, regulating or requiring the permission of the authority for straightening, changing, diverting or interfering in any way with the existing channel of a river, creek, stream or watercourse, or for changing or interfering in any way with a wetland;

(c) prohibiting, regulating or requiring the permission of the authority for development if, in the opinion of the authority, the control of flooding, erosion, dynamic beaches or pollution or the conservation of land may be affected by the development; [Emphasis Added]

(d) providing for the appointment of officers to enforce any regulation made under this section or section 29;

(e) providing for the appointment of persons to act as officers with all of the powers and duties of officers to enforce any regulation made under this section. 1998, c. 18, Sched. I, s. 12.

Delegation of powers

(2) A regulation made under subsection (1) may delegate any of the authority's powers or duties under the regulation to the authority's executive committee or to any other person or body, subject to any limitations and requirements that may be set out in the regulation. 1998, c. 18, Sched. I, s. 12.

Conditional permission

(3) A regulation made under clause (1) (b) or (c) may provide for permission to be granted subject to conditions and for the cancellation of the permission if conditions are not met. 1998, c. 18, Sched. I, s. 12.

References to maps

(4) A regulation made under subsection (1) may refer to any area affected by the regulation by reference to one or more maps that are filed at the head office of the authority and are available for public review during normal office business hours. 1998, c. 18, Sched. I, s. 12.

Minister's approval of development regulations

(5) The Minister shall not approve a regulation made under clause (1) (c) unless the regulation applies only to areas that are,

(a) adjacent or close to the shoreline of the Great Lakes-St. Lawrence River System or to inland lakes that may be affected by flooding, erosion or dynamic beach hazards;

(b) river or stream valleys;

(c) hazardous lands;

(d) wetlands; or

(e) other areas where, in the opinion of the Minister, development should be prohibited or regulated or should require the permission of the authority. 1998, c. 18, Sched. I, s. 12.

Regulations by L.G. in C. governing content of authority's regulations

(6) The Lieutenant Governor in Council may make regulations governing the content of regulations made by authorities under subsection (1), including flood event standards and other standards that may be used, and setting out what must be included or excluded from regulations made by authorities under subsection (1). 1998, c. 18, Sched. I, s. 12.

Invalid regulation

(7) A regulation made by an authority under subsection (1) that does not conform with the requirements of a regulation made by the Lieutenant Governor in Council under subsection (6) is not valid. 1998, c. 18, Sched. I, s. 12.

Transition

(8) Subject to subsection (9), if a regulation is made by the Lieutenant Governor in Council under subsection (6), subsection (7) does not apply to a regulation that was previously made by an authority under subsection (1) until two years after the regulation made by the Lieutenant Governor in Council comes into force. 1998, c. 18, Sched. I, s. 12.

Same

(9) If a regulation made by the Lieutenant Governor in Council under subsection (6) is amended by an amending regulation, subsection (7) does not apply, in respect of the amendment, to a regulation that was made by an authority under subsection (1) before the amending regulation, until such time as may be specified in the amending regulation. 1998, c. 18, Sched. I, s. 12.

Exceptions

(10) No regulation made under subsection (1),

(a) shall limit the use of water for domestic or livestock purposes;

(b) shall interfere with any rights or powers conferred upon a municipality in respect of the use of water for municipal purposes;

(c) shall interfere with any rights or powers of any board or commission that is performing its functions for or on behalf of the Government of Ontario; or

(d) shall interfere with any rights or powers under the Electricity Act, 1998 or the Public Utilities Act. 1998, c. 15, Sched. E, s. 3 (8); 1998, c. 18, Sched. I, s. 12.

Activities under the Aggregate Resources Act

(11) A requirement for permission of an authority in a regulation made under clause (1) (b) or (c) does not apply to an activity approved under the Aggregate Resources Act after the Red Tape Reduction Act, 1998 received Royal Assent. 1998, c. 18, Sched. I, s. 12.

Right to hearing

(12) Permission required under a regulation made under clause (1) (b) or (c) shall not be refused or granted subject to conditions unless the person requesting the permission has been given the opportunity to require a hearing before the authority or, if the authority so directs, before the authority's executive committee. 1998, c. 18, Sched. I, s. 12.

Powers of authority

(13) After holding a hearing under subsection (12), the authority or executive committee, as the case may be, shall,

(a) refuse the permission; or

(b) grant the permission, with or without conditions. 1998, c. 18, Sched. I, s. 12.

Grounds for refusing permission

(13.1) If the permission that the person requests is for development related to a renewable energy project, as defined in section 1 of the Green Energy Act, 2009, the authority or executive committee, as the case may be,

(a) shall not refuse the permission unless it is necessary to do so to control pollution, flooding, erosion or dynamic beaches; and

(b) shall not impose conditions unless they relate to controlling pollution, flooding, erosion or dynamic beaches. 2009, c. 12, Sched. L, s. 2.

Reasons for decision

(14) If the authority or its executive committee, after holding a hearing, refuses permission or grants permission subject to conditions, the authority or executive committee, as the case may be, shall give the person who requested permission written reasons for the decision. 1998, c. 18, Sched. I, s. 12.

Appeal

(15) A person who has been refused permission or who objects to conditions imposed on a permission may, within 30 days of receiving the reasons under subsection (14), appeal to the Minister who may,

(a) refuse the permission; or

(b) grant the permission, with or without conditions. 1998, c. 18, Sched. I, s. 12.

Offence: contravening regulation

(16) Every person who contravenes a regulation made under subsection (1) or the terms and conditions of a permission of an authority in a regulation made under clause (1) (b) or (c) is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to a term of imprisonment of not more than three months. 1998, c. 18, Sched. I, s. 12; 2010, c. 16, Sched. 10, s. 1 (2). [Emphasis Added]

Limitation for proceeding

(16.1) A proceeding with respect to an offence under subsection (16) shall not be commenced more than two years from the earliest of the day on which evidence of the offence is discovered or first comes to the attention of officers appointed under clause (1) (d) or persons appointed under clause (1) (e). 2010, c. 16, Sched. 10, s. 1 (3).

Orders

(17) In addition to any other remedy or penalty provided by law, the court, upon making a conviction under subsection (16), may order the person convicted to,

(a) remove, at that person's expense, any development within such reasonable time as the court orders; and

(b) rehabilitate any watercourse or wetland in the manner and within the time the court orders. 1998, c. 18, Sched. I, s. 12.

Non-compliance with order

(18) If a person does not comply with an order made under subsection (17), the authority having jurisdiction may, in the case of a development, have it removed and, in the case of a watercourse or wetland, have it rehabilitated. 1998, c. 18, Sched. I, s. 12.

Liability for certain costs

(19) The person convicted is liable for the cost of a removal or rehabilitation under subsection (18) and the amount is recoverable by the authority by action in a court of competent jurisdiction. 1998, c. 18, Sched. I, s. 12.

Powers of entry

(20) An authority or an officer appointed under a regulation made under clause (1) (d) or (e) may enter private property, other than a dwelling or building, without the consent of the owner or occupier and without a warrant, if,

(a) the entry is for the purpose of considering a request related to the property for permission that is required by a regulation made under clause (1) (b) or (c); or

(b) the entry is for the purpose of enforcing a regulation made under clause (1) (a), (b) or (c) and the authority or officer has reasonable grounds to believe that a contravention of the regulation is causing or is likely to cause significant environmental damage and that the entry is required to prevent or reduce the damage. 1998, c. 18, Sched. I, s. 12.

Time of entry

(21) Subject to subsection (22), the power to enter property under subsection (20) may be exercised at any reasonable time. 1998, c. 18, Sched. I, s. 12.

Notice of entry

(22) The power to enter property under subsection (20) shall not be exercised unless,

(a) the authority or officer has given reasonable notice of the entry to the owner of the property and, if the occupier of the property is not the owner, to the occupier of the property; or

(b) the authority or officer has reasonable grounds to believe that significant environmental damage is likely to be caused during the time that would be required to give notice under clause (a). 1998, c. 18, Sched. I, s. 12.

No use of force

(23) Subsection (20) does not authorize the use of force. 1998, c. 18, Sched. I, s. 12.

Offence: obstruction

(24) Any person who prevents or obstructs an authority or officer from entering property under subsection (20) is guilty of an offence and on conviction is liable to a fine of not more than $10,000. 1998, c. 18, Sched. I, s. 12.

Definitions

(25) In this section,

"development" means,

(a) the construction, reconstruction, erection or placing of a building or structure of any kind,

(b) any change to a building or structure that would have the effect of altering the use or potential use of the building or structure, increasing the size of the building or structure or increasing the number of dwelling units in the building or structure,

(c) site grading, or

(d) the temporary or permanent placing, dumping or removal of any material, originating on the site or elsewhere; ("aménagement")

"hazardous land" means land that could be unsafe for development because of naturally occurring processes associated with flooding, erosion, dynamic beaches or unstable soil or bedrock; ("terrain dangereux")

"pollution" means any deleterious physical substance or other contaminant that has the potential to be generated by development in an area to which a regulation made under clause (1) (c) applies; ("pollution")

"watercourse" means an identifiable depression in the ground in which a flow of water regularly or continuously occurs; ("cours d'eau")

"wetland" means land that,

(a) is seasonally or permanently covered by shallow water or has a water table close to or at its surface,

(b) directly contributes to the hydrological function of a watershed through connection with a surface watercourse,

(c) has hydric soils, the formation of which has been caused by the presence of abundant water, and

(d) has vegetation dominated by hydrophytic plants or water tolerant plants, the dominance of which has been favoured by the presence of abundant water,

but does not include periodically soaked or wet land that is used for agricultural purposes and no longer exhibits a wetland characteristic referred to in clause (c) or (d). ("terre marécageuse") 1998, c. 18, Sched. I, s. 12.

Transition

(26) A regulation that was in force immediately before the day the Red Tape Reduction Act, 1998 received Royal Assent and that was lawfully made under clause (1) (e) or (f) of this section as it read immediately before that day shall be deemed to have been lawfully made under clause (1) (c). 1998, c. 18, Sched. I, s. 12.

[4] Regulation 162/06, passed under the Conservation Authorities Act, is as set out below:

Ontario Regulation 162/06

Halton Region Conservation Authority: Regulation of Development, Interference with Wetlands and Alterations to Shorelines and Watercourses

Definition

1. In this Regulation,

"Authority" means the Halton Region Conservation Authority. O. Reg. 162/06, s. 1.

Development prohibited

2. (1) Subject to section 3, no person shall undertake development, or permit another person to undertake development in or on the areas within the jurisdiction of the Authority that are,

(a) adjacent or close to the shoreline of the Great Lakes-St. Lawrence River System or to inland lakes that may be affected by flooding, erosion or dynamic beach hazards, including the area from the furthest offshore extent of the Authority's boundary to the furthest landward extent of the aggregate of the following distances:

(i) the 100 Year flood level, plus an allowance of 15 metres for wave uprush and other water-related hazards,

(ii) the predicted long term stable slope projected from the existing stable toe of the slope or from the predicted location of the toe of the slope as that location may have shifted as a result of shoreline erosion over a 100-year period,

(iii) where a dynamic beach is associated with the waterfront lands, an allowance of 30 metres inland to accommodate dynamic beach movement, and

(iv) an allowance not to exceed 15 metres inland; [Emphasis Added]

(b) river or stream valleys that have depressional features associated with a river or stream, whether or not they contain a watercourse, the limits of which are determined in accordance with the following rules:

(i) where the river or stream valley is apparent and has stable slopes, the valley extends from the stable top of bank, plus an allowance not to exceed 15 metres, to a similar point on the opposite side,

(ii) where the river or stream valley is apparent and has unstable slopes, the valley extends from the predicted long term stable slope projected from the existing stable slope or, if the toe of the slope is unstable, from the predicted location of the toe of the slope as a result of stream erosion over a projected 100-year period, plus an allowance not to exceed 15 metres, to a similar point on the opposite side,

(iii) where the river or stream valley is not apparent, the valley extends the greater of,

(A) the distance from a point outside the edge of the maximum extent of the flood plain under the applicable flood event standard, plus an allowance not to exceed 15 metres, to a similar point on the opposite side, and

(B) the distance from the predicted meander belt of a watercourse, expanded as required to convey the flood flows under the applicable flood event standard, plus an allowance not to exceed 15 metres, to a similar point on the opposite side;

(c) hazardous lands;

(d) wetlands; or

(e) other areas where development could interfere with the hydrologic function of a wetland, including areas within 120 metres of all provincially significant wetlands and wetlands greater than or equal to 2 hectares in size, and areas within 30 metres of wetlands less than 2 hectares in size, but not including those where development has been approved pursuant to an application made under the Planning Act or other public planning or regulatory process. O. Reg. 162/06, s. 2 (1).

(2) The areas described in subsection (1) are the areas referred to in section 12 except that, in case of a conflict, the description of the areas provided in subsection (1) prevails over the descriptions referred to in section 12. O. Reg. 162/06, s. 2 (2).

Permission to develop

3. (1) The Authority may grant permission for development in or on the areas described in subsection 2 (1) if, in its opinion, the control of flooding, erosion, dynamic beaches, pollution or the conservation of land will not be affected by the development. O. Reg. 162/06, s. 3 (1).

(2) The permission of the Authority shall be given in writing, with or without conditions. O. Reg. 162/06, s. 3 (2).

Application for permission

4. A signed application for permission to undertake development shall be filed with the Authority and shall contain the following information:

1. Four copies of a plan of the area showing the type and location of the development.

2. The proposed use of the buildings and structures following completion of the development.

3. The start and completion dates of the development.

4. The elevations of existing buildings, if any, and grades and the proposed elevations of buildings and grades after development.

5. Drainage details before and after development.

6. A complete description of the type of fill proposed to be placed or dumped. O. Reg. 162/06, s. 4.

Alterations prohibited

5. Subject to section 6, no person shall straighten, change, divert or interfere in any way with the existing channel of a river, creek, stream or watercourse or change or interfere in any way with a wetland. O. Reg. 162/06, s. 5.

Permission to alter

6. (1) The Authority may grant a person permission to straighten, change, divert or interfere with the existing channel of a river, creek, stream or watercourse or to change or interfere with a wetland. O. Reg. 162/06, s. 6 (1).

(2) The permission of the Authority shall be given in writing, with or without conditions. O. Reg. 162/06, s. 6 (2).

Application for permission

7. A signed application for permission to straighten, change, divert or interfere with the existing channel of a river, creek, stream or watercourse or change or interfere with a wetland shall be filed with the Authority and shall contain the following information:

1. Four copies of a plan of the area showing plan view and cross-section details of the proposed alteration.

2. A description of the methods to be used in carrying out the alteration.

3. The start and completion dates of the alteration.

4. A statement of the purpose of the alteration. O. Reg. 162/06, s. 7.

Cancellation of permission

8. (1) The Authority may cancel a permission if it is of the opinion that the conditions of the permission have not been met. O. Reg. 162/06, s. 8 (1).

(2) Before cancelling a permission, the Authority shall give a notice of intent to cancel to the holder of the permission indicating that the permission will be cancelled unless the holder shows cause at a hearing why the permission should not be cancelled. O. Reg. 162/06, s. 8 (2).

(3) Following the giving of the notice, the Authority shall give the holder at least five days notice of the date of the hearing. O. Reg. 162/06, s. 8 (3).

Validity of permissions and extensions

9. (1) A permission of the Authority is valid for a maximum period of 24 months after it is issued, unless it is specified to expire at an earlier date. O. Reg. 162/06, s. 9 (1).

(2) A permission shall not be extended. O. Reg. 162/06, s. 9 (2).

Appointment of officers

10. The Authority may appoint officers to enforce this Regulation. O. Reg. 162/06, s. 10.

Flood event standards

11. The applicable flood event standards used to determine the maximum susceptibility to flooding of lands or areas within the watersheds in the area of jurisdiction of the Authority are the Hurricane Hazel Flood Event Standard, the 100 Year Flood Event Standard and the 100 year flood level plus wave uprush, described in Schedule 1. O. Reg. 162/06, s. 11.

Areas included in the Regulation Limit

12. Hazardous lands, wetlands, shorelines and areas susceptible to flooding, and associated allowances, within the watersheds in the area of jurisdiction of the Authority are delineated by the Regulation Limit shown on maps 1 to 1318 dated January 19, 2006 and filed at the head office of the Authority at 2596 Britannia Road West, R.R.#2, Milton, Ontario under the map title "Ontario Regulation 97/04: Regulation for Development, Interference with Wetlands and Alterations to Shorelines and Watercourses". O. Reg. 162/06, s. 12.

13. Omitted (revokes other Regulations). O. Reg. 162/06, s. 13.

Schedule 1

1. The Hurricane Hazel Flood Event Standard means a storm that produces over a 48-hour period,

(a) in a drainage area of 25 square kilometres or less, rainfall that has the distribution set out in Table 1; or

(b) in a drainage area of more than 25 square kilometres, rainfall such that the number of millimetres of rain referred to in each case in Table 1 shall be modified by the percentage amount shown in Column 2 of Table 2 opposite the size of the drainage area set out opposite thereto in Column 1 of Table 2.

TABLE 1

• 73 millimetres of rain in the first 36 hours
• 6 millimetres of rain in the 37th hour
• 4 millimetres of rain in the 38th hour
• 6 millimetres of rain in the 39th hour
• 13 millimetres of rain in the 40th hour
• 17 millimetres of rain in the 41st hour
• 13 millimetres of rain in the 42nd hour
• 23 millimetres of rain in the 43rd hour
• 13 millimetres of rain in the 44th hour
• 13 millimetres of rain in the 45th hour
• 53 millimetres of rain in the 46th hour
• 38 millimetres of rain in the 47th hour
• 13 millimetres of rain in the 48th hour

TABLE 2

Drainage Area (square kilometres)	Percentage
26 to 45 both inclusive	99.2
46 to 65 both inclusive	98.2
66 to 90 both inclusive	97.1
91 to 115 both inclusive	96.3
116 to 140 both inclusive	95.4
141 to 165 both inclusive	94.8
166 to 195 both inclusive	94.2
196 to 220 both inclusive	93.5
221 to 245 both inclusive	92.7
246 to 270 both inclusive	92.0
271 to 450 both inclusive	89.4
451 to 575 both inclusive	86.7
576 to 700 both inclusive	84.0
701 to 850 both inclusive	82.4
851 to 1000 both inclusive	80.8
1001 to 1200 both inclusive	79.3
1201 to 1500 both inclusive	76.6
1501 to 1700 both inclusive	74.4
1701 to 2000 both inclusive	73.3
2001 to 2200 both inclusive	71.7
2201 to 2500 both inclusive	70.2
2501 to 2700 both inclusive	69.0
2701 to 4500 both inclusive	64.4
4501 to 6000 both inclusive	61.4
6001 to 7000 both inclusive	58.9
7001 to 8000 both inclusive	57.4

2. The 100 Year Flood Event Standard means rainfall or snowmelt, or a combination of rainfall and snowmelt, producing at any location in a river, creek, stream or watercourse, a peak flow, that has a probability of occurrence of one per cent during any given year.

3. The 100 year flood level means the peak instantaneous still water level plus an allowance for wave uprush and other water-related hazards for Lake Ontario and Hamilton Harbour in the Great Lakes-St. Lawrence River System that has a probability of occurrence of one per cent during any given year.

O. Reg. 162/06, Sched. 1.

3.0: Grounds of Appeal Argued

Against Sentence

[5] Numerous grounds of appeal are set out in the Notice of Appeal but the main ground is that the trial judge erred in failing to order the Respondents to remove, at their expense, the development in question, within such reasonable time as the court orders.

[6] The relief sought is an order for the removal of the unauthorized development at the Respondents' expense under section 28(17) of the Conservation Authorities Act, to be done within such reasonable time as the court orders by way of a probation order under section 72 of the Provincial Offences Act.

4.0: The Standard of Review

Against Sentence

[7] The Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, states as follows:

122. (1) Where an appeal is taken against sentence, the court shall consider the fitness of the sentence appealed from and may, upon such evidence, if any, as it thinks fit to require or receive, by order,

(a) dismiss the appeal; or

(b) vary the sentence within the limits prescribed by law for the offence of which the defendant was convicted,

and, in making any order under clause (b), the court may take into account any time spent in custody by the defendant as a result of the offence.

Variance of sentence

(2) A judgment of a court that varies a sentence has the same force and effect as if it were a sentence passed by the trial court. R.S.O. 1990, c. P.33, s. 122.

One sentence on more than one count

123. Where one sentence is passed upon a finding of guilt on two or more counts, the sentence is good if any of the counts would have justified the sentence. R.S.O. 1990, c. P.33, s. 123; 1993, c. 27, Sched.

5.0: Caselaw

Against Sentence

[8] In R. v. Turcotte, [2000] O.J. No. 1316 (C.A.), Catzman J.A., speaking for the court, said the following at para 16:

The limitations on an appellate court in considering an appeal against sentence have been stated and recently restated by the Supreme Court of Canada. The sentencing judge's disposition must be "not fit" or "clearly unreasonable": R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 46. It must fall "outside the acceptable range": Shropshire, at para. 50. In the absence of "an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit": R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 90. The sentence must be "in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes": M. (C.A.), at para. 92. The sentence imposed at trial "is entitled to considerable deference from appellate courts": R. v. Proulx, 2000 SCC 5, 140 C.C.C. (3d) 449, at para. 123. "Although an appellate court might entertain a different opinion as to what objectives should be pursued and the best way to do so", appellate courts should not "second-guess sentencing judges unless the sentence imposed is demonstrably unfit": Proulx, at para. 125.

6.0: Case History

[9] The following chronology sets out the history of this case:

2007

February 5 – Application filed by the Hannas with the Halton Region Conservation Authority [the "Authority"] for a one storey and basement lakeside addition to the present one storey home at 472 Indian Road, Burlington – Teresa Labuda, professional engineer from the Authority, and who is also the Authority's Coordinator for its Coastal Program & Watershed Capital Projects, visited the property.

March – Application refused and no appeal was launched to the Authority.

May – The Respondents filed another application to the Authority for a side-yard addition and garage, and this was granted in November.

2008

February 15 – The Hannas had two sets of architectural drawings, the ones authorized for the side addition and garage, and a set of unauthorized drawings for the lakeside addition. These unauthorized drawings were submitted to the City of Burlington for heating and cooling plan approval, before any construction had commenced – The city told the respondents no approval could be given since the lakeside addition had not been approved by the Authority.

April – The respondents hired Brejnik Fine Homes Inc. to conduct an on-site inspection based on the unauthorized drawings, and work commenced on the lakeside one storey addition.

June – A City of Burlington inspector noticed that the construction of the second storey addition had commenced, in violation of the city's building permit.

July

• 24 – Peter Brejnik left "proposed" plans for the lakeside addition with the Authority, after the structure had been erected.
• 31 – An on-site meeting took place between Susan Hanna, Walter and Peter Brejnik, and the Authority's Teresa Labuda – Labuda observed that the lakeside addition had already been constructed and windows installed, but no bricks had yet been placed on the exterior walls of this second storey addition.

August 21 – The Authority issued a stop work order and a request to remove the unauthorized addition – However, the construction continued.

September 4 – The City of Burlington issued a stop work order and a plea of guilty was later entered, and a $1,000.00 fine imposed.

October

• 1 & 2 – The Authority executed a search warrant for a legal survey, photos, and measurements – On both days, contractors were working on the unauthorized construction, and the work was fully completed in October.

2009

July 2 – The Hannas appealed to the Minister of Natural Resources under section 28(15) of the Conservation Authorities Act – The Minister referred the appeal to the Mining and Lands Commissioner – On October 15 the Commissioner granted a motion filed by the Authority which stated that it had no jurisdiction to hear the appeal, since there had been no request to be heard before the Authority or its Executive Committee, after the initial refusal.

2010

February 26 – Pleas of guilty entered by Mr. and Mrs. Hanna to the charge – There were twelve days of sentencing proceedings.

2011

January 24 – Reasons for Judgment delivered and sentence imposed.

7.0: Analysis

[10] There were many disputed facts in this matter, but it must be remembered this was a sentencing hearing, not a trial. However, the onus is on the Crown to prove disputed aggravated facts beyond a reasonable doubt: R. v. Gardiner, [1982] 2 S.C.R. 368.

[11] This is a case in which the Hannas were clearly frustrated by their desire to do as they chose with their own property. When the application for the lakeside addition was turned down, they did not appeal to the Authority, even though they later appealed to the Minister of Natural Resources. They simply went ahead with the construction and did what they were told they could not do. There was no constitutional challenge to the legislation, but the wisdom of it was questioned in the sentencing process. The respondents asserted that the second storey addition posed no realistic environmental or safety hazard.

[12] The Crown countered with the contention that a larger and heavier structure created by the addition could harm someone or fall into Burlington Bay over time, or if a catastrophic event occurred, such as Hurricane Hazel in 1954.

[13] At page 138 of her judgment, Her Worship concluded that "it has been established beyond a reasonable doubt that the subject property is within the erosion hazard zone."

[14] In her evidence in examination in chief, Susan Hanna was asked the following questions and gave the following answers:

Q: Do you remember – well, you've already mentioned this. You got a stop work order from the city, and that was when?

A: September the 4th, 2008. That was in writing.

Q: Yeah, okay. And, what area of the house was it applicable to?

A: Just the kitchen area above the basement foundations.

Q: Okay. I believe it was in October that you continued work on the affected area of the house, and that was after you got the stop work order from the city. Do you want to explain why you …

A: Well….

Q: …after that carried on working on the house?

A: …well, there were several reasons. We were frustrated with not hearing back, not getting any answers, inactivity. We were told…

Q: From – any or answers or activity from?

A: From Halton Conservation. We ..

Q: Okay.

A: And, we – we were affected with our rental accommodation, that was going to be coming to an end, and there was four of us that – to think about. We lost a couple of our sub – sub-contractors because they wanted to go to other jobs, they were kind of tired of waiting around wondering what was happening. We had intruders on our property, I encountered one night, and it was pretty scary. And, so consequently, we were afraid of thefts because the house was vacant. I don't know if you remember, but 2008 was a horrible rainy spring, summer and fall, and we were having severe water damage because the house was exposed, rodents, things like that were happening. The insurance company, we were experiencing issues with them because the – of the vacant house, and it also affected our mortgage financing ability and the requirements to keep insurance in place. Our builder advised us to get the stucco and insulation work done because, you know, it – it was going to be a warrant – a warranty issue, with resultant – and in fact we did get a letter from our stucco supplier saying we should take immediate preventative measures in order to – for it not to be a void warranty, because of the issues with the weather and everything. And, we still had no heat, hydro, electricity to the house. We were afraid of mould issues and pipes freezing, and that sort of thing, so ….

Q: All right. So, those are mostly construction issues. Are there any other reasons why you decided ….

A: Yes. I was experiencing severe health problems. I was not sleeping, still I'm not, feeling very anxious, just emotionally drained, and I went to my doctor and a couple of things happened to really exasperate my stress level. One day, several Halton – Halton Conservation officials showed up at the house in their uniform. They had armed police, Halton Police, with them, with a search warrant for the property. They ran around taking pictures, writing down licence plate numbers, basically upsetting the trades that were working on the house at that point, myself, my builder. The neighbours were wondering what was going on. They also went with search warrants to our builder's home and to some of the – I believe a couple of the sub-contractors' homes, and it was very stressful time, very unnerving. Also, on November the 13th of that year, Mr. Jull stated in an email that he would not be seeking jail time, so of course I was thinking, like, how did it get to this situation, like jail time, I mean, I'm not – you know, I'm being treated as a criminal, almost. I –I –I it was unbelievable. And it was financially causing hardship as well, and my husband decided that we should just go ahead and – and preserve our family unit as much as we can, and we went ahead and finished it, and we moved in. There was no kitchen though. We didn't have a kitchen."

[15] From the testimony above of Mrs. Hanna, it was her husband's decision to go ahead and finish the construction. Mr. Hanna did not give evidence. When defence expert witness James Hettinger, an architect, was being qualified, he gave the following evidence:

A: I was the Ontario manager for the Minneapolis-based developer Opus, and through there we were a vertically integrated company, but I was associated with O.R.E. Architects.

Q: Okay. And, is that the same company, or the same name of the company, that Mr. Hanna worked for?

A: We were affiliated, and we worked, and we supported O.R.E. Development, but we were at arm's length, because the way – in Ontario architect firms cannot be owned by other than architects, so we had to be our own entity, even though we worked in the same building and we did exclusive that was our client, but we were a wholly-owned subsidiary at our own company.

Q: And, did you work with Mr. Hanna on various development projects?

A: Yes, I did.

Q: And what kind of development projects were they?

A: Primarily industrial buildings.

Q: Okay. All right. And, where were they – where were those projects?

A: They were in southern Ontario, so they would range from London to Milton to Brantford to as far north as North Bay."

[16] From this testimony of Mr. Hettinger, it is clear that Mr. Hanna worked in land development in southern Ontario. Because of this, it would be reasonable to expect that he would know what building restrictions are applicable in any given area, including Burlington. He would be expected to know far more about this than an average citizen. His decision to finish the construction is proof of his defiance and blatant disregard for the development rules of the Halton Region Conservation Authority. The Hannas were even able to persuade Brejnik Fine Homes Inc. and Keven Webster Designs Inc. to defy these rules.

[17] Even an average citizen, without Mr. Hanna's specialized knowledge and awareness, would be expected in law not to proceed with the construction of this addition.

[18] With his wife's concurrence, Mr. Hanna went ahead with the addition and completed it, despite his knowledge that such construction was not permitted. I find as a fact that the sentence of the learned trial judge was totally inadequate, even though I have great respect for her. Applying the principles set out by the Ontario Court of Appeal in R. v. Turcotte [supra], it is my opinion that the sentence is demonstrably unfit and should be set aside. Once the original application was denied, the respondents should not have undertaken any lakeside construction.

[19] If this sentence is permitted to stand, the Halton Region Conservation Authority and its rules would be a laughing stock, and others would be easily encouraged to disobey them. Specific deterrence and general deterrence are the governing sentencing principles in this appeal. In my view, the Crown has proven all the disputed aggravated facts beyond a reasonable doubt.

7.1: Conclusion

[20] The appeal is allowed, and the sentence imposed is set aside. The fine of $5,000.00, each paid by Mr. and Mrs. Hanna, will be remitted to them. The probation order requiring the reconstruction of the seawall shall remain in effect. Under section 28(17) of the Conservation Authorities Act [supra], an order will go for the removal of the lakeside addition in question, at the expense of Mr. and Mrs. Hanna. It shall be removed within a reasonable period of time to be determined after I hear further submissions.

November 19, 2012

Signed: "Justice Alan D. Cooper"