Court File and Parties

Court File No.: 10-8095

Ontario Court of Justice

Between:

Her Majesty the Queen — Respondent

— And —

Richard Clare and Jeffrey Clare — Appellants

Before: Justice Robert S. Gee

Appeal heard on: April 13, 2015

Reasons for Judgment released on: June 22, 2015

Counsel:

• B. Greenspan / N. Lutes — Counsel for the Appellants
• N. Adamson — Counsel for the Respondent Crown

Introduction

[1] The Appellant, Richard Clare, owns a number of properties in and around the area of Burford, Ontario that make up a large cattle farming operation. Jeffrey Clare, the other Appellant in this matter, is Richard Clare's son.

[2] The Appellants were convicted on July 22, 2014 by Her Worship Justice of the Peace P. Valeriano of two counts of hindering or obstructing a provincial offences officer, contrary to section 42(1) of the Nutrient Management Act. Jeffrey Clare was fined $1,000.00. Richard Clare was fined $8,000.00 and ordered to comply with a period of probation for eight months.

[3] The Appellants appealed their convictions and Richard Clare also appealed his sentence, however he abandoned his sentence appeal during oral argument.

[4] For the reasons that follow, the appeals are dismissed.

Facts

[5] This appears to be the latest chapter in long simmering tension between the Clares and representatives of governmental authorities authorized to inspect and enforce compliance with regulatory schemes related to the beef cattle industry.

[6] In this incident, two officers from the Ministry of the Environment, Shane Tormey and Shawn Burr, attended a Clare farm on June 28, 2010 for an unannounced inspection. They carried out their inspection, in the absence of the Clares, until they encountered Jeffrey Clare arriving at the farm as they were leaving. They spoke to Jeffrey Clare and advised him of the purpose of their visit and also told him they planned on inspecting another Clare farm property in the area.

[7] At the next property, the inspectors backed their truck into an access road and parked it with the front of the truck facing out to the road. They left the truck and proceeded with their inspection of the property on foot. It soon started raining and they returned to their truck. At this point a truck driven by Jeffrey Clare, in which Richard Clare was a passenger, pulled up and parked directly in front of the inspectors' truck, blocking its exit.

[8] Mr. Tormey called Jeffrey Clare on his cell phone. The call was answered by Richard Clare who demanded to know under what authority the inspectors were entering his property. Mr. Tormey advised him section 13 of the Nutrient Management Act gave them the authority to enter the property to inspect. Richard Clare responded they were trespassing and stated he would not let them leave. When asked again by Mr. Tormey if he would allow them to leave, Richard Clare again said no. Mr. Tormey advised he would call the police and Mr. Clare invited him to do so.

[9] The police were called and they remained in those positions. After the police arrived they spoke to the Clares and advised them the inspectors were authorized to be on the property. Richard Clare was not pleased with this answer and told the police he had no respect for the Ministry inspectors and if they came back he would use a payloader to flip their vehicle into the ditch. He also said words to the effect that if he had access to a gun he would shoot the inspectors.

Issues

[10] This is a strict liability offence. As such the Crown only need prove the actus reus of the offence. If so proven then the burden shifts to the accused to demonstrate on a balance of probabilities that they exercised due diligence.

[11] The Appellants in their factum alleged four errors were made by Her Worship. In oral argument they limited their argument to two alleged errors that incorporated all their arguments in their factum.

[12] First, they have alleged the justice of the peace erred in finding that the acts of the Clares amounted in law to obstructing or hindering the inspectors. In other words, they allege based on the evidence at trial, the actus reus was not proven.

[13] Second, they allege that even if the actus reus was proven, the Clares exercised due diligence in the circumstances, and were entitled to an acquittal on that basis.

Analysis

Issue 1. Did the Clares Obstruct or Hinder the Officers?

[14] It was conceded at trial that Mr. Tormey and Mr. Burr were properly accredited Ministry of the Environment officers and were acting in the furtherance of their duties. As such the issue at trial was whether the two officers had been obstructed or hindered in their duties by the actions of the Clares. The justice of the peace found they were obstructed or hindered. I agree with her conclusion.

[15] The Appellants' line of reasoning in relation to this issue is as follows. At trial the evidence relating to the area on either side of where the officers parked their truck varied. There was evidence that on either side of the access point where the officers were parked was a ditch. The depth of this ditch was an issue at trial. The evidence in this regard varied from half a metre deep as testified to by one of the officers or as little as eight inches deep as testified to by Edward Kloepfer, the only witness called by the defence.

[16] The argument by the Appellant is that given the depth or lack thereof of this ditch, the officers, had they tried, could have manoeuvered around the Clares' truck, traversed the ditch and thereby taken their leave of the property.

[17] Her Worship rejected this line of reasoning and found that to try such a manoeuver through a one to two foot deep ditch would have been unsafe.

[18] This was a finding of fact she made based on her assessment of the evidence before her. The standard of review on an appeal for findings of fact is palpable and overriding error. Unless it is established the trial judge made a palpable or overriding error, findings of fact will not be reversed on appeal. See: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at par 10.

[19] The Appellants argue that Her Worship arrived at her conclusion by rejecting the evidence of Mr. Kloepfer and in doing so did not resolve inconsistencies between his evidence and that of the officers, nor did she provide adequate reasons for doing so.

[20] I disagree. Her Worship heard the testimony of all the witnesses and made the credibility findings she did. Those findings are entitled to deference on appeal. As well, reasons must be read as a whole and as the Court of Appeal stated in R. v. Morrissey, 97 CCC (3d) 193 "it is wrong to analyze a trial judge's reasons by dissecting them into small pieces and examining each piece in isolation…"

[21] Her Worship did not accept the evidence of Mr. Kloepfer. She addressed his testimony in her reasons and although her explanation for rejecting his evidence is not overly lengthy or detailed it is clear from the reasons as a whole that she accepted the officers' testimony in this area. She did not accept Mr. Kloepfer's evidence due to the fact he was testifying about circumstances of the ditch and access areas from four years before, and that he may have been unaware of the access points to the field in that area in 2010. This was a finding she was entitled to make on the evidence before her and does not demonstrate any palpable or overriding error.

[22] In any event whether or not there was some other means for the officers to achieve their purpose is not relevant. It is not necessary that the act completely frustrate the officers. Any act that makes it more difficult for them to carry out their duties is an obstruction. See: R. v. Tortolano, (1975) 28 C.C.C. (3d) 562 and R. v. Yussuf, 2014 ONCJ 143.

[23] The evidence in this regard was uncontroverted. The Clares parked their truck directly in front of the officers' truck. They were asked to move several times and they refused. They were parked close enough in proximity, and parked in such a manner, that it prevented the officers from driving out the way they came in. This act made it more difficult for the officers to carry out their duties.

[24] What the Clares did amounted to an obstruction. The offence was fully made out when they parked their truck in front of the officers' truck and refused to move it when requested. It was not necessary for the officers to exhaust all other options that may have, with hindsight, been available to them. Nor was it necessary for them to have to test the Clares' resolve to prevent them from leaving. In retrospect, the threats made by Richard Clare to the police demonstrate this was, no doubt, a wise decision.

[25] As such, this ground of appeal fails.

Issue 2. Did the Clares Demonstrate They Exercised Due Diligence?

[26] The Appellants' due diligence argument focussed on what was asserted to be the Clares' reasonable expectations in relation to inspections conducted by Ministry officers. The Appellants' position at trial was that based on the prior pattern of inspections carried out of their properties, the Ministry would provide advance notice and make arrangements with them to conduct the inspections at a mutually agreeable time. That this expectation was reasonable was further informed by the existence of a Ministry website that purported to inform the public that inspections would be carried out in a cooperative and coordinated manner.

[27] Since this pattern of cooperation was not followed and given the information contained in the website, the argument at trial was that this led the Clares to reasonably believe the officers were acting without authority and were trespassing.

[28] The Appellants argue that Her Worship misapprehended the purpose for which the evidence concerning the Ministry website was proffered. In her reasons she referred to it and considered whether it perhaps could have formed the basis for a defence in the nature of an officially induced error. The Appellants submit this was never the purpose for which this evidence was offered.

[29] The Appellants point out they have always conceded the officers were acting lawfully. The purpose of the website evidence according to them was that it was relevant to the Clares' state of mind.

[30] However as mentioned, this is a strict liability offence. As a result, the Clares' state of mind is not relevant in the same context as it would be in a criminal offence where the Crown needs to prove mens rea. The only context in which the Clares' state of mind would be relevant would be in demonstrating they exercised due diligence.

[31] The Appellants conceded during oral argument that although the elements of a due diligence defence may have been alluded to in their arguments, it was never specifically articulated by them. Given this context, that the defence of due diligence was not specifically articulated for her, I am not prepared to conclude that Her Worship misapprehended the purpose for which this evidence was put forth.

[32] In any event, a defence of due diligence requires the accused to demonstrate on a balance of probabilities that they reasonably believed in a state of facts which, if true, would render the act or omission innocent, or, they took all reasonable steps in the circumstances to avoid the event that constitutes the offence. See: R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299.

[33] In this case, the Clares are unable to establish a successful due diligence defence.

[34] The first problem for the Clares in this regard is that their mistake, even if it could be said to have been reasonably held, was a mistake of law and not of fact. They contend at the time of the encounter they thought the officers were acting without, or beyond, their authority, and as such were trespassing. This, as they conceded at trial, was not the case; the officers were well within the scope of their authority to conduct an unscheduled inspection.

[35] This alone is sufficient to dispose of the Clare's due diligence defence. Mistakes of law cannot, absent officially induced error, underpin a due diligence defence. See: La Souveraine, Compagnie d'assurance générale v. Autorité des marchés financiers, 2013 SCC 63, [2013] 3 S.C.R. 756.

[36] That being said, even if the Clares actually believed the officers were trespassers, that belief was not reasonably held in the circumstances. There was evidence before Her Worship that the officers had made unscheduled inspections to Clare properties before, specifically in March 2010 of which the Clares were aware. Additionally there was no evidence before the court that the Clares were even aware of the Ministry website in issue, but perhaps most importantly, when they asked Officer Tormey what his authority was for conducting the inspection, he told them. As such, given this constellation of factors, the assertion they believed the officers were trespassing was not reasonable.

[37] Nor could they have relied on the other pathway to a due diligence defence even if their mistake was one of fact and not law.

[38] To do so they would have had to demonstrate they took all reasonable steps to avoid the event. Here, they took no steps to avoid obstructing the officers.

[39] Recall that Jeffrey Clare encountered the officers at another property prior to the encounter where the offence was committed. He would have been aware they just conducted an unscheduled inspection and was advised they were on their way to conduct another.

[40] There was no evidence before Her Worship that in the intervening period between the two inspections that day the Clares did anything to determine the authority of the officers to conduct unscheduled inspections.

[41] The only step the Clares took was to commit the offence. No calls or inquiries of the Ministry were made to assess the activities of the officers. The police were not called beforehand, nor were they even called by the Clares; they were called by the officers. That the Clares agreed with making the call to the police cannot be interpreted as taking all reasonable steps to avoid the event. By the time that step was taken, the offence had been committed.

[42] As such, this ground of Appeal fails too.

Conclusion

[43] As a result, based on all the foregoing reasons, the appeals of both Appellants are hereby dismissed.

Dated at Brantford, Ontario

This 22nd day of June 2015.

The Honourable Mr. Justice R.S. Gee