Court File and Parties

Court File No.: Kitchener 4460-999-10/591, 10/592, 10/593

Date: 2012-11-28

Ontario Court of Justice

In the Matter of: An appeal under clause 116(2)(a) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

Her Majesty the Queen Respondent

— And —

Jason Geil, Janet Bratton, Ontario Corporation #1410025 o/a Geil Style Enterprises Inc. Appellants

Before: Justice G. F. Hearn

Heard on: September 20, 2012

Reasons for Judgment released on: November 28, 2012

Counsel

Steven O'Melia — for the Respondent Her Majesty the Queen

Terrance Green — for the Appellants Jason Geil, Janet Bratton, Ont. Corp. #1410025 o/a Geil Style Enterprises Inc.

On appeal from: Convictions by Justice of the Peace Z. Radulovic on January 26, 2011 and sentences on September 16, 2011.

HEARN J.:

BACKGROUND

[1] On January 26, 2011 after a three-day trial commencing on September 29, 2010, with the evidence being completed on December 22, 2010, the appellants were found guilty of an offence under s. 28(16) of the Conservation Authorities Act, R.S.O. 1990 c. C.27. The relevant provisions of that legislation relating to such findings read as follows:

Section 28:

"(1): Subject to the approval of the minister an authority may make regulations applicable in the area under its jurisdiction,

(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;"

"(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."

"(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."

"(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."

"(25) In this section,

"development" means,

(c) site grading, or

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

[2] Relevant as well to the matters under appeal is Ontario Regulation 150/06 made pursuant to the provisions set out in the Conservation Authorities Act. That regulation among other things prohibits any person from undertaking a development or preventing another person to undertake development in or on areas within the jurisdiction of the Grand River Conservation Authority including hazardous lands and wetlands. That particular regulation provides that the areas include such property within the watersheds in the area of jurisdiction of the Grand River Conservation Authority as set out on certain maps dated May of 2006 and filed at the head office of the authority in Cambridge.

[3] Essentially the charges before the court relate to the alleged failure of the Appellants to obtain the necessary authorization from the Grand River Conservation Authority prior to undertaking development on property situated at 1943 Roseville Road in the Township of North Dumfries.

[4] Her Worship Justice of the Peace Radulovic delivered comprehensive reasons for judgment on January 26, 2011 and on September 16, 2011 sentenced the various appellants. The Appellant Jason Geil was required to pay the maximum fine under the legislation of $10,000, the Appellant Janet Geil $1,500, and the corporate Appellant $1,000. In addition, as permitted under the Act, Her Worship imposed a Rehabilitation Order with respect to a portion of the development undertaken without the necessary permit on the subject property and as outlined on the photo which is appended to that particular order.

[5] Following the imposition of the sentences the appellants brought various motions before this court seeking leave to appeal and orders to stay the payment of the fines and the Rehabilitation Order pending the outcome of the appeal. For reasons delivered on February 2, 2012 such relief was granted and the appeal was argued on September 20, 2012 at which time full submissions were made by counsel and the matter was reserved to today's date.

GROUNDS OF APPEAL

[6] The Notice of Appeal and the supporting material in this matter sets out the grounds for appeal as follows:

1. Does a Justice of the Peace have the jurisdictional authority to hear matters regarding private property rights in respect of alleged wetlands and conservation authorities when it is not proven that the property exhibits natural wetlands?

2. Does a conservation authority have jurisdiction over private property prior to entering into an agreement as per s. 21 of the Conservation Authorities Act or in accordance with the Conservation Lands Act?

3. Did counsel at trial who represented all appellants represent the defendants competently and, further, was he in conflict having previously acted for the Grand River Conservation Authority as a prosecutor?

REASONS FOR JUDGMENT AT TRIAL

[7] Her Worship delivered a lengthy judgment on January 26, 2011. In that judgment the justice of the peace reviewed the evidence of numerous witnesses who had given evidence during the course of the trial. This review included the evidence of various Crown witnesses as well as the evidence of the appellant Jason Geil and additional defence witnesses.

[8] The judgment sets out a summary of the evidence of each witness as found by the court. Her Worship then made findings of fact based on the evidence that she accepted and found credible.

[9] Of note, in arriving at the facts ultimately accepted by the trial court her Worship applied the appropriate reasoning and standard of proof and gave thorough and logical reasons for such findings which are certainly sufficient for appellate review.

[10] The trial court also accepted and reviewed various documentary evidence including numerous photos that had been filed, all of which had been entered without objection during the course of the trial. The justice of the peace in her reasons set out a logical path to the convictions and explained the conclusions she made, why she made them and gave reasons for rejecting the defence. She dealt with the issues in play and argued, and appears to have demonstrated within her reasons her appreciation of the issues present.

[11] It is of note that the trial court made specific rulings on the issue of credibility of various witnesses including the Appellant Jason Geil. Her Worship also dealt specifically with the issue of jurisdiction of the Grand River Conservation Authority over the lands in question and found she was satisfied on all the evidence as well as the appropriate legislation that both the laneway and the berm situated on the subject property and which had been subject to development were all within the regulated area. As a result, quite properly Her Worship found that pursuant to the relevant regulation made under the Conservation Authorities Act a permit with respect to development in that area would be required. The court found this would be the case both with respect to the laneway and the berm, although the Restoration Order ultimately made only related to the laneway.

[12] The trial court reviewed the evidence and found the evidence established that there had been created by the Appellants a "very significant defined road" through protected wetland without the necessary authorization. As well, the court when dealing with the evidence of Jason Geil found that evidence not to be credible or trustworthy in certain respects, specifically with respect to the number of loads of fill that had been applied to the property both on the laneway and the berm that had been created. With respect to the evidence of Jason Geil, the Appellant himself acknowledged the depositing of a minimal amount of fill in this particular area. However, as noted by the trial court the quantity of fill dumped is not important as an offence can be committed even with one load of fill being dumped in the area without a permit. The court also found on the facts the Appellants were aware as early as 2006 that a permit was required for the development of the property, yet proceeded otherwise.

[13] Overall the judgment of the trial court reads logically following the findings of fact that are subject to deference. The pathway to conviction was reasoned and dealt with the matters that had been placed before the trial court.

ARGUMENTS AND FINDINGS ON APPEAL

[14] The grounds for appeal have been previously set out. It is important to note that there is no issue taken with respect to the findings of credibility nor findings of fact made by the trial court. It seems that the issues on appeal boil down to whether or not the trial court had jurisdiction to hear the matter, whether the conservation had authority itself over the subject property and, finally, whether or not counsel was effectively negligent in the conduct of the defence. Subsumed in this last issue is whether or not there was a conflict with respect to defence counsel. Apparently such counsel had acted previously as a prosecutor for the authority as noted by one of the cases relied upon by the defence in support of other arguments on appeal. Further subsumed in this particular issue is whether or not fresh evidence should be considered by the appeal court, i.e. the photograph which purports to show the existence of a private laneway or road on the subject property in the area developed as early as 1975.

[15] The Appellant takes no issue with the finding of the trial court with respect to the defence put forward at trial of an officially induced error which was considered and rejected by the trial court.

[16] Initially with respect to the jurisdiction of this court on appeal, I note s. 120 of the Provincial Offences Act which states as follows:

"120. (1) On the hearing of an appeal against a conviction or against a finding as to the ability, because of mental disorder, to conduct a defence, the court by order,

(a) may allow the appeal where it is of the opinion that,

(i) the finding should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(iii) on any ground, there was a miscarriage of justice; or

(b) may dismiss the appeal where,

(i) the court is of the opinion that the appellant, although the appellant was not properly convicted on a count or part of an information, was properly convicted on another count or part of the information,

(ii) the appeal is not decided in favour of the appellant on any ground mentioned in clause (a), or

(iii) although the court is of the opinion that on any ground mentioned in subclause (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred."

[17] Section 122 of the Provincial Offences Act reads:

"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."

[18] Relevant to the consideration of new evidence, the authority of the court under s. 117(1) permits the court to order the production of any writing, exhibit or other thing relevant to the hearing of the appeal. This encompasses the Appellant's argument that the court should consider as fresh evidence the photograph submitted on the appeal and marked as Exhibit #2, being what purports to be an April 1975 photo of the subject property.

FIRST AND SECOND GROUNDS OF APPEAL

[19] Dealing initially then with the first two grounds of appeal relating to the court below's jurisdiction to deal with "private property rights". Here the Appellants argue that the finding of the Justice of the Peace was unreasonable or cannot be supported by the evidence and, further, and in any event, should be set aside on the ground of a wrong decision on a question of law.

[20] Her Worship considered this jurisdictional issue within the context of the provisions of the Conservation Authorities Act. She found that the Grand River Conservation Authority was the necessary authority and that it had jurisdiction over the area where the subject property was located. She further found that the relevant regulation made under the Act was in place and included by reference to the maps filed at trial the property known as 1943 Roseville Road, Township of North Dumfries. All such findings were available to the Justice of the Peace on the evidence that she accepted.

[21] Her Worship clearly set out the evidence to be considered, understood the legislation that she quoted and the principles she had to apply. Her reasons with respect to the jurisdictional issue show that she was quite cognizant of the relevant issue and her decision with respect to that issue is perfectly reasonable.

[22] The legislation grants authority to the Grand River Conservation Authority to make regulations regarding an area under its jurisdiction. Here, the land was within the jurisdiction of the authority and the authority was authorized to restrict development on designated property including wetlands.

[23] Section 21, I find, operates independently of s. 28 of the Act and applies to situations where the authority might enter into an agreement to meet their obligations under the legislation. It in no way impacts on the authority's ability to make regulations regulating development within a regulation area. The Justice of the Peace's reasons dealt with this issue appropriately, fully, and in this court's view, correctly. These particular grounds of appeal have no merit.

THIRD GROUND OF APPEAL

[24] This involves consideration of the alleged incompetence of counsel, the admission of "new evidence" and the issue of "conflict". With respect to this particular ground of appeal, the Appellants submit initially a conflict on the part of trial counsel as that particular counsel had previously acted for the G.R.C.A. in a prosecution of a case dealing with a similar issue wherein, interestingly enough, the prosecution had not been successful. It also involves a consideration of the negligence or incompetence of defence counsel conducting the trial of this matter. This issue arises as a result of the alleged failure of counsel to provide the court with certain evidence including the photograph submitted on appeal which purports to show a laneway as early as 1975 in the area where the laneway now exists and where the development occurred. The Appellants also allege that trial counsel failed to lead evidence and argue the issue of impact, if any, on wetlands as found by the court.

[25] In dealing with the issue of the admission of fresh evidence on appeal, the test for considering whether or not to admit such evidence is governed by the following principles. (See Regina v. Palmer, 50 C.C.C. (2d) 193 and Regina v. McMartin, 1 C.C.C. 142.)

1. It is not in the interests of justice that the appeal court receive evidence as a matter of course in the absence of specific direction in the governing statute authorizing that.

2. Whether the accused made an attempt to adduce the evidence at trial is an important consideration.

3. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

4. The evidence must be credible in the sense that it reasonably is capable of belief.

5. The evidence must be such that if believed it could reasonably when taken with the other evidence adduced at trial be expected to have affected the result.

[26] It has been found that the due diligence component of the fresh evidence inquiry specified in the case law noted is consistent with the principles underlying the Provincial Offences Act and the realities of proceedings under the Act. (See Regina v. 1275729 Ontario Inc., [2005] O.J. No. 5515, Ontario Court of Appeal.) Also, it is important to appreciate that there is a reluctance on the part of the appeal court to grant new trials for the calling of fresh evidence when the Appellants were represented at trial.

[27] With respect to the issue of incompetence or claimed incompetence on the part of trial counsel, the case law establishes that this is a fairly high test that the Appellants must meet on a balance of probabilities. The actions complained of must show incompetence and the Appellants must show that the acts or admissions of the trial counsel were unreasonable and fell below appropriate standards. The Appellants must also establish that the incompetence alleged on the part of trial counsel had an effect on the reliability of the decision made by the lower court and that there is a reasonable probability that the decision would have been different if trial counsel had not been incompetent. (See Regina v. White, [1997] O.J. No. 961.)

[28] In dealing with this particular ground of appeal, it is important to look at the trial justice's decision with respect to the relevant areas where it is alleged counsel was negligent. This allegation effectively arises as a result of alleged failure of counsel to produce a photograph which the Appellants allege shows the existence of a roadway in 1975 and before. It also encompasses an argument that defence counsel failed to lead evidence on the impact of the development on the wetlands.

[29] In dealing with this issue, which became a factual issue decided in favour of the prosecution at trial, the Justice of the Peace did not accept evidence that a laneway existed prior to 2006 and relied on the photograph filed at trial which showed no such road in existence in 2006 (see Exhibit H). Specifically she did not accept the evidence of the Appellant Jason Geil nor the defence evidence presented by his brother with respect to the pre-existence of such a laneway, nor with regard to the extent of the development undertaken.

[30] The presiding Justice of the Peace thoroughly considered all of the evidence with respect to such an issue and found that the area where there was a roadway and the area where there was a new berm fell within the regulated area. The Justice of the Peace discounted the evidence of Stewart Geil with respect to the elevation of the laneway and relied on the photograph marked as Exhibit H dated May of 2006 of the subject property which did not depict any laneway through the bush area. The Justice of the Peace, as she was entitled to do, referred to further exhibits, in particular photographs marked accordingly to indicate that there was no indication that such a laneway existed in 2006 throughout the wetland. It would appear as well that there was photographic evidence led at trial to apparently show a portion of the roadway that pre-existed but the Justice of the Peace gave that evidence little weight as it had not been shown that the photographs precisely depicted the areas of concern.

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

[32] In coming to the conclusion that she did with respect to the non-existence of the laneway previously, the Justice of the Peace noted:

"Reviewing Exhibit H which depicts an aerial photograph of 1943 Roseville Road flown May 2006 by Grand River Conservation Authority is evidence that there is no indication of either a laneway or any sort of a passage through the wetland area except a small portion of some sort of laneway on the beginning before the bush area. However, the laneway is clearly visible on Exhibit A Picture 73 all the way through the area as defined under Regulation 150/06 as wetland."

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

[34] It is important to note the evidence of Jason Geil itself confirmed a "development" to a certain degree, much less than alleged by the authority, had taken place on the laneway even if in fact it did exist in some form or another prior to 2006. Further, the fact that it existed prior to 2006 would not have assisted the court in understanding that it continued to exist in 2006 as the photograph filed at the trial clearly does not show such a laneway and, in any event, even if it did exist on all the evidence including the evidence of the Appellants development did take place to some degree. The Justice of the Peace found that degree to be much greater than suggested by the defence evidence but even to the degree set out by the Appellants it would have been sufficient to warrant findings of guilt on the facts as found by the trial court.

[35] The Appellants have not shown there was an attempt to adduce the evidence at trial, nor that the evidence in any event is relevant in the sense that it would have a decisive or potential decisive weight at trial. Further, it cannot in any way be said that the "new evidence" could reasonably be expected to have affected the result given even the evidence of the Appellant Jason Geil at trial.

[36] The request to introduce the new evidence on the appeal is therefore denied. The court would make it clear that even if such "evidence" had been submitted it does not, in this court's view, support the position of the Appellants that the laneway existed previously or that even if the laneway did exist it existed to the degree in place at the time the charges were laid. In fact, if anything, the "new evidence" confirms the significant extent of the development undertaken by the Appellants without proper authorization over the designated property.

[37] Dealing with the alleged incompetence at trial, this ground of appeal has no merit nor does the issue of alleged conflict. Any conflict that may have existed was for the authority to raise as they had been previously represented by trial counsel on an unrelated matter, granted involving similar issues raised at the trial in this matter. Further, there is absolutely nothing on the record to cause the court to have concern with respect to the competence of counsel at trial. This was not raised during the course of the trial and I find is an afterthought on the part of the Appellants. Decisions with respect to the calling of evidence and submissions upon the completion of the evidence are within the realm of trial counsel to decide. There is nothing before the court to indicate such decisions were wrong let alone negligent and there is nothing whatsoever to suggest the actions of trial counsel compromised in any way the fulfillment of his duties and ethical responsibilities, nor did his actions compromise the rights of the Appellants. The issue of conflict and negligence is, in this court's view, a "red herring".

[38] The court has already addressed the issue of the "photo" and notes further that the Appellants raise the issue of counsel failing to bring forward evidence with respect to the impact on the wetlands. The impact on the wetlands is of no consequence and would not have assisted the Appellants in defending the action as clearly the property is within the designated area, development was undertaken without a permit and the Appellants, particularly Jason Geil, were aware that such authorization was required. Still, they proceeded in at least a cavalier manner in developing not only the laneway but also the berm in a significant fashion.

[39] An appeal court may overturn a conviction acting under s. 120 if:

1. it is unreasonable or cannot be supported on the evidence.

2. there has been an error on a question of law; or,

3. there has been a miscarriage of justice.

The test is not whether the appeal court has a reasonable doubt with regard to the first ground about the correctness of the conviction or even if satisfied that it is wrong, but instead the test is whether it is possible to reach that verdict acting judicially. The onus is on the Appellants to establish that the court entering the conviction erred and that the evidence cannot support a conviction.

[40] With respect to Ground 2, the Appellant must show a clear error of law. The Appellant must prove the error. Even if it does so, the court might dismiss the appeal if the error did not occasion a substantial wrong or miscarriage of justice, although the onus of showing this generally falls on the Respondent.

[41] The third ground deals with the miscarriage of justice and is reserved for the most extreme situations in which it is necessary to grant an appeal for reasons of fundamental justice. (Regina v. Arnold, [2002] O.J. No. 3835.)

[42] Keeping in mind the test, the court finds that the trial judge considered all matters reasonably. She articulated her reasons for rejecting the testimony of certain witnesses and reached a conclusion that was certainly open to her on all of the evidence. Further, with respect to the issue of jurisdiction the justice considered that particular issue, applied appropriate case law to the facts before the court and did not err in that regard.

[43] Accordingly, the appeal as to conviction will be dismissed.

[44] With respect to the issue of the sentence appeal, the trial court considered the evidence before it, addressed the aggravating and mitigating factors on sentence and applied those factors to appropriate principles. It appears given all the circumstances in place and considering the aggravating features, particularly with respect to the Appellant Jason Geil, the sentences were fit and appropriate. The fines imposed address the issues of deterrence and cannot be considered harsh or oppressive. The Appellant Jason Geil received the maximum fine and that fine was warranted on the basis of the aggravating features present and noted by the Justice of the Peace in her reasons for sentence.

[45] For the reasons noted then the appeals as to conviction and sentence will be dismissed.

Released: November 28, 2012

Signed: "Justice G. F. Hearn"