Court File and Parties

Court File No.: Central East - Newmarket 4911-11-2369 Date: 2015-02-18 Ontario Court of Justice

Between: Her Majesty the Queen Appellant

— And —

1533904 Ontario Limited Respondent

Before: Justice P.N. Bourque

Released: February 18, 2015

Counsel:

• W. Thompson, for the Respondent
• H. Saamen, for the Appellant

Judgment

Overview

[1] This is an appeal of the Judgment of His Worship Justice of the Peace Radtke, dated July 18, 2013 where he acquitted the defendant of an offence under sections 2(b) and 9.1(a) of the Town of Whitchurch-Stouffville By-Law No. 2008-016-RE.

Reasons for Judgment

[2] The Justice of the Peace provided oral reasons on July 18, 2013. The Justice stated the issue he had to decide as follows: ". . . this case rests on whether the prosecution proved beyond a reasonable doubt that the defendant transported new fill onto his property as alleged".

[3] Both the appellant Municipality and the defendant agree that the presiding Justice misdirected himself and a correct reading of the by-law does not involve any determination of whether the defendant transported new fill onto his property. In some defence of the Justice of the Peace, I note that the Crown, in her closing submissions, agreed that the case would be decided on whether the Crown had proven this issue beyond a reasonable doubt.

[4] The Respondent (the "defendant") asserts that nonetheless, I can still maintain the acquittal on this appeal. In the alternative, he asserts that I should send it back for a re-trial.

[5] The Appellant (the "prosecutor") asserts that I can enter a conviction and I can do so, either by amending the information or not. He also states in the alternative that I can send it back for a re-trial.

The By-Law

[6] The information reads as follows:

"The (defendant) on or about the 6th day of May, 2011, at . . . did commit the offence of permit fill to be placed at 12917 McCowan Road in the Town. . . without first having received a permit. . . contrary to. . . By-law 2008-016-RE as amended, Section 2 (b)."

Definition Sections

General Prohibitions

Section 2(b): No person shall place or dump any fill, remove any topsoil or otherwise alter the grade of land by causing, permitting or performing a site alteration on land within the Town without the owner first receiving a permit issued under this by-law by the Director;

Section 1(h): "dump, dumped or dumping" means the depositing of fill in a location other than where the fill was obtained and includes the movement and depositing of fill from one location on a property to another location on the same property

Section 1(i): "fill" means soil, stone, concrete, sod or turf either singly or in combination

Section 1(j): "grade" shall be defined as follows:

• (i) "existing grade" means the elevation of the existing ground surface of the lands upon which dumping and/or placing of fill is proposed and of abutting ground surface up to 3 metres wide surrounding such lands, except that where placing or dumping of fill has occurred in contravention of this by-law. Existing grade shall mean the ground surface of the lands as it existed prior to the dumping of full or to any site alteration requiring a permit under this by-law;
• (ii) "finished grade" means the approved elevation of ground surface of lands upon which fill has been placed in accordance with this by-law;
• (iii) "proposed grade" means the proposed elevation of ground surface of land upon which full is proposed to be placed;

Section 1(n): "place, placed or placing" means the distribution of fill on lands to establish a finished grade different from the existing grade;

Section 1(r): "site alteration" means dumping, the removal of topsoil from land, or the alteration of the grade of land by any means including clearing and grubbing, the compaction of soil or the creation of impervious surfaces, or any combination of these activities;

Exclusions (there are 14)

Section 3(j): The placing or dumping of soil on lands for the purpose of lawn dressing, landscaping or adding to flower beds or vegetable gardens, provided that the ground elevation of the lands is not increased by more than two hundred (200) millimetres and there is no significant change in the direction or rate of drainage to neighbouring property.

[7] The stated objectives of the by-law are as follows: "Being a site alteration by-law to prohibit or regulate the removal of topsoil, the placing or dumping of fill and the alteration of the grade of land in areas of the Town of Whitchurch-Stouffville."

Should the decision of the presiding justice of the peace be set aside?

[8] Both Appellant and Respondent admit that the presiding Justice of the Peace misdirected himself as to the applicable issue to be decided, and having decided the case solely on that one issue, his decision should be set aside.

Should I enter an acquittal or a conviction, or should I direct a re-trial?

[9] The default position of both parties is to order a re-trial, but both Appellant and Respondent also ask me to consider deciding the case in their favour, from the Appellate bench.

[10] The defence argues that evidence could lead to an acquittal even if there is an amendment, as looking at the totality and purpose of the legislation, (controlling the drainage patterns of lands and their effects upon adjoining lands), that there is an element of a "temporary" movement which should be considered. Briefly stated, the defendant says that the movement of the soil on the lands was designed to return the land to its previous condition and while, for a short time, the soil would be in such a condition as to offend the by-law, there was evidence that this was temporary, and thus there could be no offence committed in law, taking into account the purpose of the by-law.

[11] The Crown argues that this is an impractical constraint to the implementation of the by-law, and in any event, was not contemplated in the plain reading of the legislation. I agree with the Crown's submission.

[12] The Crown argues that I can make an amendment to the by-law by removing the word "approved" in par 1 (j) (ii) and then by not considering the argument of timing (set out above) I can enter a conviction without amending the information.

[13] The Crown argues in the alternative that the words "dump, dumped or dumping" (as per para 1 (h)) are to be read into the information and therefore even if I don't feel I can re-write the by-law, I can find the defendant guilty on appeal for breaching the by-law in that fashion.

[14] The question is whether such an interpretation is completed by sec 25(3) of the Provincial Offences Act. I do not believe that it is. In our case the words "dumping" and placing" are defined very differently in the by-law. They have different meanings which go beyond a mere nuance. Quite frankly, if the word "dumping" was actually used in this allegation, the error made by the Justice of the Peace would probably not have happened, because it incorporates movement of fill within one property. The definition of "place" contains no such words but adds some very unique characteristics of its own, namely further definitions of a "finished grade" and "approved elevation".

[15] It is my view that section 25(3) would in this case, protect a prosecution from a motion to dismiss for lack of particularity at the outset. Other elements of the charging section 2 (b), are brought into it ("...by causing, permitting or performing a site alteration on land..."), but not in my opinion, a totally distinct and alternative means of committing the offence. I would not read into this information the word "dumping".

[16] This leads to the next issue, namely, whether I should amend the information at this stage, and apply the evidence, and arrive at a disposition. The crown points to the decision in R. v. Morozuk, [1986] S.C.J. No. 3, and states that this case is analogous to a situation where a charge refers to possession of "marijuana" but proves the offence of possession of "cannabis resin" and an amendment is allowed. I note however that in granting an amendment the court states: "[20] Of course if there is irreparable prejudice, there can be no amendment. . . ".

[17] The defence points to the recent decision in R. v. Brownson, [2013] O.J. No. 4661 where the Ontario Court of Appeal denied an amendment to an information on appeal where the disqualification charged (an order under the Criminal Code) was at variance with the charge proved (a suspension under provincial legislation). In coming to this decision the court observed:

[22] However, caution must be the watchword when an appeal court considers a Crown request to amend an. . . information and enter a conviction for a person who would be acquitted on the basis of the un-amended indictment or information".

The Court went on to consider:

[23] When considering a Crown request to amend an. . . information at the appeal stage. . . the court must focus carefully on the precise qualifying words of s. 683 (1)(g) C.C. and ask this question: Has the accused been misled or prejudiced in the his defence or appeal?".

[18] In considering whether to grant the amendment at this stage without a new trial, I am considering the following:

(a) The defendant proceeded upon his defence based upon the charge as laid and it is clear from the trial record that it was to that means of committing the offence that his defence was based;

(b) Defence and Crown and ultimately the trial court were in complete error as to what constituted an appropriate defence to the charge as laid;

(c) The defence raised by the defendant could not have been entertained but for this means of committing the offence and the error in law made;

(d) As noted above the by-law contains at least 14 exemptions from the application of the by-law and I don't think it is necessary that I be convinced at this stage that none of them may be successful.

[19] Based on the above, it is my opinion that the defendant has been misled in his defence and it is further my opinion that this constitutes a real prejudice. It is my opinion that it would be manifestly unfair to the defendant to allow such an amendment and then decide the case on the record before me. I also note that the justice made very few findings of fact pertaining to these issues.

[20] I must say that if this amendment was sought at the outset or during the trial, the court would have been in the position of assessing the specific prejudice and in the appropriate case, have granted an adjournment to ameliorate the prejudice, if that was possible. In my opinion such an amendment would have been routinely granted if sought before the end of the Crown's case. The trial justice would have been in a good position to decide whether an adjournment be granted, or indeed whether Crown witnesses should be recalled for further cross-examination.

Conclusion

[21] I set aside the acquittal of the defendant. For the reasons set out above, I will remit the matter back to the Provincial Offences Court for a re-trial.

[22] For the reasons set out above, I will allow the Crown to amend the information to add the words "or dumped" after the word "placed" in the information.

Signed: "Justice P.N. Bourque"

Released: February 18, 2015