Court Information

Ontario Court of Justice Central West Region Brampton, Ontario

Parties

Between:

The City of Mississauga

-and-

Farhat Khalid

Reasons for Judgment

Duncan J.

Facts

[1] The Appellant/defendant was charged on an information with two counts under the Building Code Act:

1. On or about October 15, 2010 did construct a building, to wit: construction of a basement entrance without a permit having been issued therefore by the Chief Official, contrary to section 8(1) of the Act and section 36(1)(c) of the Act

[2] Between December 21, 2010 and July 25, 2011 did fail to comply with an Order to comply issued on October 15, 2010 pursuant to section 12(2) of the Act contrary to section 36(1)(b) of the Act

She was tried and convicted on July 25, 2012 by Justice of the Peace P. Welsh. She was fined $3,000 on count 1 and $2,000 on count 2. She now appeals both conviction and sentence pursuant to section 116 of the POA.

Background Facts

[3] The core facts are not disputed. On September 14, 2010 the City of Mississauga received a citizen complaint regarding the construction of a basement entry and stairs at the side of the defendant's home at 5200 Swiftcurrent Trail, Mississauga. She did not have a permit for the construction. An inspector did not attend until October 15th at which time, on seeing the structure in question, he issued an Order to "Obtain a permit or remove the side entrance". Compliance was required by December 21, 2010.

[4] On October 29, the defendant submitted an application for a permit. However the application was denied because the side entrance and stairs were not in compliance with the applicable zoning by-laws. The defendant's options were to apply to the Committee of Adjustment for approval or to remove or undo the offending entrance. She did neither. The defendant's husband had a number of meetings with City officials and exchanged correspondence but neither available option was pursued. The City ultimately laid the charges and issued a summons in August 2011.

Issues

[5] Given the lack of dispute as to the facts set out above, one might well wonder what the trial was about. The defendant was represented at trial and on appeal by her husband Mr. S. Khalid, now a licensed paralegal but not at the time of trial. What the trial justice viewed as Mr Khalid's continuous and at times unshakable focus on irrelevant matters and meritless points rendered the trial difficult, prolonged and somewhat fractious. At one point he was ejected from the court and his wife was advised to find a legally trained representative. The trial was adjourned for her to consider her position. On resumption Mr Khalid brought a multi-grounded motion including a motion "that the trial be conducted by a different justice". The motion was dismissed but Mr Khalid, on undertaking to comply with the rules, was permitted to continue to represent his wife.[1]

[6] The issues raised at trial and on appeal are as follows:

The Summons Issue(s)

[7] At trial Mr Khalid was fixated on the fact that he was served with the summons when he attended a meeting in August 2011 with City officials, something he regarded as "unethical". In fact he had filed a pretrial Motion dated September 2, 2011 for an Order that certain City officials be "charged under the Code of Conduct section (7) of the Building Code Act" for this conduct. This summons point and his persistence with it also became the point of contention that led to Mr Khalid's expulsion from the courtroom on the first day of trial.

[8] Plainly this point has no relevance to the charges or convictions. In any event there was nothing unethical about serving the summons at the time of the meeting. Mr Khalid had been previously warned in correspondence that he could face prosecution if he continued to fail to comply with the Order.

[9] On appeal it was also argued that section 3(3) of the POA provides that service of a summons shall be affected within 30 days of the offence and the summons issued in August 2011 was therefore well out of time.[2] There is no merit to this. The provision relied upon applies to Part I (certificate of offence) procedure only and not to a prosecution, such as this one, on an information under Part III.

Necessity

[10] One discernible issue raised at trial was what the defendant characterized as the "defence of necessity". He said that his basement foundation wall was cracked and there was a serious problem with water leakage that had to be remedied.

[11] The trial Justice dealt with this issue and I see no error in his handling of it. Even if the situation required immediate attention and repair there was no reason why the crack repair had to include creation of a basement entrance or, even if it did, why a permit could not have been obtained for the work. The argument had no merit and was rightly rejected.

Officially Induced Error

[12] The defendant's argument, as I understand it, is twofold: First that he was not told by anyone that a side entrance was not permitted; secondly that he was told by City officials that it would be useless to apply to the Committee of Adjustment because the Committee would never approve of a side entrance.

[13] As to the first point, the defendant claimed that he made inquiries of the City in early September 2010 as to what was needed for a permit application. He received written material as to the information and drawings required. But, as mentioned, he did not apply for such a permit until October 29. He had already completed the construction well before then. His argument, as I understand it, is that the absence of any caution or advice to the effect that side basement entrances were not permitted amounted to an officially induced error. It is contended that such information should have been included in the preliminary information he received regarding permit application requirements. Further, it is claimed that such error was compounded by the absence of any publicly disseminated information regarding such prohibition.

[14] Again, the argument has no merit at all. The defendant, aware of the permit requirement, chose to proceed before he had permission. He bears full responsibility for the consequences. In no way was he misinformed or induced by anyone, official or otherwise, to engage in the non-permissible construction.

[15] As to the second point re the Committee of Adjustment, the evidence from the City officials with whom the defendant met and corresponded was that he was repeatedly encouraged to go to the CoA and advised that it was the only course open to him aside from tearing the structure down. But even if the defendant was told that an application to the CoA was doomed to failure, it would not matter. At its highest the advice he claimed to have received might explain why he did not pursue the CoA option to attempt to remedy the situation but it had nothing to do with his commission of the offences in the first place. The officially induced error defence applies where one commits an offence honestly believing from an official source that it is lawful to do so: R v Jorgensen, [1995] 4 SCR 55; R v Cranbrook Swine Inc, [2003] OJ No 1433 (Ont CA). Plainly the alleged erroneous official advice must precede the commission of the offence. In any event, here there was no erroneous advice. The City made it clear throughout that he was non-compliant and in continuing breach of the law.

Building Code Does Not Apply

[16] The defendant argues on appeal (but not at trial) that the Building Code Act only applies to structures exceeding ten square meters (section 1(1)) and consequently he was not required to obtain a permit at all.

[17] There is no merit to this argument. The ten square meters refers to the size of the building. "Construct" is defined as any "material alteration to a building". A permit is required for any "construction" that is, material alteration, on a "building": (Sec. 8).

New Law

[18] At the outset of the trial, even before arraignment, Mr Khalid argued that a new law now permitted the type of construction at issue. He referred to it as "Bill 140 Strong Community Through Affordable Housing Act 2011 past (sic) on May 4 2011…in force January 1 2012". (Trans. May 17 P 1).

[19] The trial Justice considered that any new law had no relevance because the applicable law was that which was in force at the time of the offence. He directed the trial to proceed. Clearly he was correct.

Unfair Trial

[20] The defendant argues that his trial was unfair due to repeated interruptions by the trial Justice which prevented him from making full answer and defence and created a reasonable apprehension of bias.

[21] Interruptions per se - even if numerous - do not create reversible error unless, on review of the record, the conduct of the Judge has resulted in an unfair trial or the appearance of an unfair trial. In the leading case of R v Valley, 26 CCC 3d 207 (Ont CA) Martin JA said:

The judge's role in a criminal trial is a very demanding one, sometimes requiring a delicate balancing of the interests that he is required to protect. The judge presides over the trial and is responsible for ensuring that it is conducted in a seemly and orderly manner according to the rules of procedure governing the conduct of criminal trials and that only admissible evidence is introduced. A criminal trial is, in the main, an adversarial process, not an investigation by the judge of the charge against the accused, and, accordingly, the examination and cross-examination of witnesses are primarily the responsibility of counsel. The judge, however, is not required to remain silent. He may question witnesses to clear up ambiguities, explore some matter which the answers of a witness have left vague or, indeed, he may put questions which should have been put to bring out some relevant matter, but which have been omitted. Generally speaking, the authorities recommend that questions by the judge should be put after counsel has completed his examination, and the witnesses should not be cross-examined by the judge during their examination-in-chief. Further, I do not doubt that the judge has a duty to intervene to clear the innocent. The judge has the duty to ensure that the accused is afforded the right to make full answer and defence, but he has the right and the duty to prevent the trial from being unnecessarily protracted by questions directed to irrelevant matters. This power must be exercised with caution so as to leave unfettered the right of an accused through his counsel to subject any witness' testimony to the test of cross-examination. The judge must not improperly curtail cross-examination that is relevant to the issues or the credibility of witnesses, but he has power to protect a witness from harassment by questions that are repetitious or are irrelevant to the issues in the case or to the credibility of the witness. (See R. v. Bradbury, 14 C.C.C. (2d) 139 (Ont. C.A.) at 140-41; R. v. Kalia, (1974), 60 Cr. App. R. 200 at 209-211).

In R. v. Torbiak and Campbell, 18 C.C.C. (2d) 229 (Ont. C.A.) Mr. Justice Kelly in a much-quoted judgment pointed out that the position of the trial judge is one of great power and prestige which gives his every word an especial significance. The position of established neutrality requires that the trial judge should confine himself as much as possible to his own responsibilities and leave to counsel and to jury their respective functions. He also said at p. 231:

Since the limits of the allowable conduct are not absolute, but relative to the facts and circumstances of the particular trial within which they are to be observed, every alleged departure during a trial from the accepted standards of judicial conduct must be examined with respect to its effect on the fairness of the trial.

Some departures from the ideal may of themselves so seriously affect the appearance of the fairness of the trial as to require the granting of a new trial. However, in the great majority of instances the gravity to be assigned to the conduct of a judge is relative to its effect on the right of the accused to a fair trial according to law.

[22] On review of this record, it appears that the trial Justice's interventions and interruptions, while numerous, were all directed to curtailing what he perceived as pursuit of irrelevant matters, a characterization with which I am in substantial agreement. In essence, the defendant's complaint is that the trial judge did not sufficiently indulge Mr. Khalid's attempted forays into what he thought was important.

[23] The Provincial Offences Court is a very busy place and like all courts, has limited time and resources. Increasingly, it is required to deal with what might be called nuisance trials or nonsense trials - where there is no real issue on any substantive matter but the proceedings become greatly inflated and prolonged by misinformed or mischievous litigants who pursue irrelevant or manifestly meritless "defences", file endless bogus motions alleging (often falsely) petty or irrelevant grievances dressed up as Charter violations, and generally treat the Court as their playground or their stage on which to play lawyer. It is essential that the Court retain the power to deal with these practices with a firm hand.

[24] With the benefit of hindsight, I think it would have been preferable if the trial Justice had simply allowed the defendant to bring out his evidence and then deal with its irrelevance at the end of the case. Certainly it would have been less time consuming and disruptive. But I am not prepared to say that the Justice erred in taking a different approach. In fact I confirm that he was entitled to curtail any excursion at all into irrelevant areas and to keep doing so in the face of persistence. As for any claim of reasonable apprehension of bias, in my view such a claim cannot be based on conduct and rulings that the trial justice was entitled to make.

[25] Finally, if there was error, it could have had no effect on the verdict. The relevant facts were clear, undisputed and un-defendable.

Conclusion on Appeal from Conviction

[26] The appeal from conviction should be dismissed.

Appeal from Sentence

[27] The defendant was fined a total of $5,000 on the two counts.

[28] It seems to me that the passing of some new provision or adoption of a new zoning regime under which the offending structure would now be considered legal may have some bearing on the appropriate penalty to be imposed in this case. I have been unable to find the specific statute mentioned by Mr Khalid but there does appear to have been a massive new Regulation under the Building Code Act that has been promulgated: see O. Reg. 332/12. Whether this Regulation touches the type of structure at issue here and more specifically, whether the defendant would be in compliance under it, is beyond the ability of this court to determine. I think the best way to make such a determination is for the defendant to now apply to have his permit application re-assessed (if that is permitted) or to apply to the Committee of Adjustment for approval. I am told that such an application has been made but no decision has been given.

[29] Accordingly, I am going to dismiss the appeal from conviction but direct that the sentence appeal be adjourned:

a. To be brought back before me for hearing after the decision in respect of the new application has been given.

b. If it appears that no such application has been made or is not made before April 15, 2014, to be brought back before me as soon as practicable for hearing and final disposition.

February 28, 2014

B Duncan J.

S. Khalid for the Appellant R Craig for the Respondent

Footnotes

[1] The wife was the one charged because she was the owner of the property as per the tax assessment rolls. However Mr Khalid was clearly the one who was driving the bus both in dealings with the City and in court.

[2] Though the second count extended to July 25, 2011 anyway.