Court Information

Court: Ontario Court of Justice

Date: August 1, 2017

Court File No.: Halton-Burlington Information nos. 13-7246; 13-7247; 14-7592

Location: Provincial Offences Court – Burlington, Ontario

Parties

Prosecutor: Halton Region Conservation Authority

Defendants: Houshyar Ahmad, Lavinder Aulakh, Harkamaljit Singh Bahia (inadvertently omitted during the oral delivery of the Ruling), Benji Transport Inc., Brock Aggregates Inc., Lewis Burchell, Dancar Haulage Corporation, Dilligaf Logistics Ltd., EarthCo Soil Mixtures Inc., G & L Group Ltd., Nana Gambrah, Gambrah Trucking Co., Courtney Gayle, Heavy Weight Trucking Inc., Hours Trucking Company, Zakir Housein, Coleen Ann Hunter, Jas Deol Trucking Inc., Jeorge Campoverde Haulage Ltd., Pasquale Lamanna, Carol McLean, Anthony Mensa, Earl Patrick, Nickolai Romantchenko, Noel Roper, Jaspal Singh, Tylors Trucking Services Inc., Surjit Uppal, Carlo Waite, O'Niel Young, Erica Young, 1167877 Ontario Inc., 1191669 Ontario Inc., 1688543 Ontario Inc., 1770195 Ontario Inc., 2163832 Ontario Inc., 6282121 Canada Inc. (under information number 1260-999-13-7247); Daryn Bagg and Salman Cevlik (under information number 1260-999-13-7246); EarthCo Soil Mixtures Inc. (under information number 1260-999-14-7592)

Judicial Officer and Counsel

Before: Justice of the Peace Kenneth W. Dechert

Counsel for the Halton Region Conservation Authority: K. Jull and J. Wigley

Counsel for the Defendants: M. Klaiman

Hearing Dates

Heard on May 16, 2016, June 6, 2016, August 22, 2016, October 18, 2016, December 12, 2016 and April 3, 2017

Reasons for Judgment released on August 1, 2017

Statutes, Regulations and Rules Cited

• Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended, s. 1, ss. 3(4), paras. 28(1)(a), 28(1)(b), 28(1)(c), 28(1)(d), 28(1)(e), ss. 28(4) and ss. 28(16)
• Evidence Act, R.S.O. 1990, c. E.23, as amended, s. 25
• Legislation Act, S.O. 2006, c. 21, as amended, ss. 64(1) and ss. 64(2)
• Ontario Regulation 162/06, made pursuant to the Conservation Authorities Act, as amended, s. 1, paras. 2(1)(b), 2(1)(c), 2(1)(d), 2(1)(e), ss. 2(2) and ss. 2(3)

Ruling on Voir Dire

Introduction

[1] The trial of the subject consolidated proceedings began before me on September 1st, 2015. It continued on September 4th, 2015, December 7th, 2015, January 4th, 2016, January 25th, 2016, January 26th, 2016, May 9th, 2016, May 16th, 2016, June 6th, 2016, August 22nd, 2016, October 18th, 2016, December 5th, 2016, December 12th, 2016 and on April 3rd, 2017. The proceedings were then adjourned to August 1st, 2017 for my ruling pertaining to a voir dire which commenced on May 16th, 2016, and for trial continuation.

[2] In these proceedings the prosecution, the Halton Region Conservation Authority, also known as Conservation Halton, was represented by its counsel Mr. K. Jull, from September 1st, 2015 until August 22nd, 2016 and by its counsel Mr. J. Wigley from October 18th, 2016 to present. The defendants are represented by their counsel Mr. M. Klaiman.

[3] In informations nos. 13-7246 and 13-7247, all of the said defendants except for G & L Group Ltd. are charged with offences contrary to subsection 28(16) of the Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended, relative to allegations that they breached various provisions of Ontario Regulation 162/06 as amended, made pursuant to the Conservation Authorities Act, supra, both as principal offenders and as parties to the offences. G & L Group Ltd. is only charged as a party to the offences. These offences were alleged to have taken place between the 28th day of August, 2012 and the 26th day of September, 2012, relative to the parcel of land municipally known as 7459 Auburn Road, Milton, Ontario.

[4] In information no. 14-7592, the defendant EarthCo Soil Mixtures Inc. is charged with two offences contrary to subsection 28(16) of the Conservation Authorities Act, supra, relative to allegations that it breached two provisions of Ontario Regulation 162/06, as amended, as principal offender. These offences were alleged to have taken place between the 28th day of August, 2012 and the 26th day of September, 2012, relative to "the lands adjacent to 7459 Auburn Road, in the Town of Milton known as an unnumbered parcel of land located at Part Lot 13, Concession VIII, Trafalgar Township, Town of Milton, Region of Halton roll # 240909008003302".

[5] As indicated above, the trial in these proceedings began on September 1st, 2015. The evidentiary phase of the proceedings commenced on September 4th, 2015, when the prosecution called its first witness, Mr. Nathan Murray, a Watershed Enforcement Officer employed by the Halton Region Conservation Authority.

[6] During the course of the continuation of his testimony on the trial proper on January 4th, 2016, Officer Murray identified a document described as "Ontario Regulation 162/06, Approximate Regulation Limit ['A.R.L.'] map sheet #1179", hereinafter referred to as the "A.R.L. map". The officer testified that one of the properties under consideration in these proceedings; 7459 Auburn Road, was shown on the aerial photograph contained in the said map sheet, and that the area delineated by means of a yellow line and yellow-coloured shading on the map constituted the areas of the subject property over which the Halton Region Conservation Authority had regulatory jurisdiction. He advised that the subject map sheet was one of a series of maps located in the office of the Halton Region Conservation Authority in Burlington, Ontario.

[7] At that time, I ruled that the said A.R.L. map appeared to be prima facie hearsay evidence, as the author of the document was not available to testify as to its contents. I determined that the map was, therefore, presumptively inadmissible and could not, at that time, be received into evidence as a numbered exhibit for the truth of its contents. The said map sheet #1179; both a small "binder copy" and a large copy, which was displayed on a courtroom easel, was then marked as exhibit "C" to these proceedings, "subject to further proof".

[8] During the continuation of his testimony on the trial proper of January 25th, 2016, Officer Murray utilized a clear acetate sheet to place over the large copy of exhibit "C", as a means of making certain notations and markings on the sheet, so that those markings were superimposed over the said A.R.L. map (exhibit "C"). In doing so, the officer re-identified the large copy of A.R.L. map on the court easel, as being the map relative to the property municipally known as 7459 Auburn Road, Milton, Ontario, over which the acetate sheet containing the officer's markings in ink was placed. Accordingly, the large copy of the said A.R.L. map and the acetate sheet covering the map were re-marked, collectively as exhibit "C(i)", "subject to further proof". The small "binder copy" of the A.R.L. map, continued to be referred to as exhibit "C", "subject to further proof".

[9] The admissibility of exhibits "C" and "C(i)" was the subject matter of a voir dire in these proceedings, which commenced on May 16th, 2016. The evidentiary phase of the voir dire took place on May 16th, 2016, June 6th, 2016, August 22nd, 2016, October 18th, 2016 and December 12th, 2016. I received final legal submissions from the prosecutor on December 12th, 2016 and his reply submissions on April 3rd, 2017. I received final legal submissions from the counsel for the defendants on April 3rd, 2017.

[10] During the course of the voir dire, I received the testimony of four prosecution witnesses.

[11] Officer Nathan Murray testified on the voir dire on May 16th, 2016. On June 6th, 2016 and on August 22nd, 2016, I received the testimony of Mr. Cory Harris, a Water Resources Engineer employed by the Halton Region Conservation Authority, hereinafter referred to as "the Authority", followed by the testimony of Ms. Lesley Matich, a Terrestrial Planning Ecologist with the Authority. On October 18th, 2016 and December 12th, 2016, I received the testimony of Ms. Kimberly Barrett, a Terrestrial Planning Ecologist employed by the Authority, who, at the time of her testimony of December 12th, 2016, held the position of Associate Director of Science and Partnerships.

The Issues

[12] The ultimate issue in this voir dire is whether or not the documents, being the small A.R.L. map, marked as exhibit "C" and the large A.R.L. map sheet and the clear acetate sheet containing markings made by Officer Murray, marked as exhibit "C(i)", may be received into evidence on the trial proper for the truth of their contents. In light of the fact that the contents of the documents have not been proven through the viva voce testimony of their author or authors, they appear to constitute presumptively inadmissible hearsay.

[13] The prosecutor seeks the admission of these two documents as numbered exhibits in this trial, for the truth of their contents. The onus rests on the prosecution to rebut the presumption of inadmissibility of the documentary evidence on a balance of probabilities. If I am persuaded that the prosecution has overcome the presumption of inadmissibility by the preponderance of the evidence adduced on the voir dire, in the context of the law submitted and argued by both parties, then the documents will be entered into evidence for the truth of their contents.

[14] The prosecutor submits that the subject A.R.L. map sheet #1179, which defines the approximate limit of the regulated area of the subject property, is admissible in evidence in these proceedings as "part and parcel" of Ontario Regulation 162/06, under the authority of section 25 of the Evidence Act, R.S.O. 1990, c. E.23, as amended, hereinafter referred to as the "OEA". In this regard, the prosecutor argues that both the small A.R.L. map and the large A.R.L. map, being exhibits "C" and "C(i)" respectively, contain statements of fact created through the regulation limit delineation process described by all of the witnesses during the voir dire. He submits that these maps merely define the approximate location and extent of the regulatory jurisdiction of the Authority over the lands depicted in map #1179 and therefore form part of the regulation, as they are specifically referred to in subsection 2(2) of Ontario Regulation 162/06.

[15] In the alternative, the prosecutor argues that the subject A.R.L. map sheet is admissible into evidence either under the statutory/common law public documents exception to the hearsay evidence rule or under the statutory / common law business records exception to the hearsay evidence rule or through the application of the principled approach to hearsay evidence.

[16] On the other hand, the counsel for the defendants submits that the subject regulation limit delineation map constitutes hearsay evidence and that the prosecution has failed to rebut the presumption of the inadmissibility of either or both of the written or depicted statements on the map, for the truth of their contents. Accordingly he argues that exhibits "C" and "C(i)" should not be received into evidence.

[17] The counsel for the defendants argues that the subject regulation limit map created through the application of the technical process described by the witnesses on the voir dire, is a distinct document which can best be characterized as a statement of the opinion of members of the analytical team involved in the delineation of the regulated area over the property. He argues that a reasonable interpretation of the text of section 25 of the OEA does not support a conclusion that an approximate regulation limit map created by a conservation authority pursuant to a statutory obligation, is part of the regulation which prescribes the making of that document. The counsel submits that if the Legislature intended to include all documents made pursuant to a provision of a regulation, as being constituent parts of the regulation, then the text of the provision would clearly have defined the terms; statutes or regulations, to include all documents related to the provisions of the particular statute or regulation.

[18] The counsel for the defendants therefore maintains that the subject A.R.L. map is not admissible under the authority of section 25 of the OEA.

[19] He further argues that the A.R.L. map is not admissible under the statutory or common law public documents exception to the hearsay evidence rule or the statutory or common law business records exception to the hearsay evidence rule. In this regard, he maintains that the map is prima facie hearsay evidence as the document contains out of court statements which are tendered in court by a witness other than its author, for the truth of its contents. He further submits that the subject map is, in essence, a statement of opinion of a number of technical assessors and evaluators, rather than a statement of fact or facts. He argues that the preponderance of the jurisprudence relative to this issue supports the proposition that a document containing opinion may not be considered a business record or a public document for purposes of rebutting the presumption of inadmissibility of that document as hearsay.

[20] Finally, the counsel for the defendants submits that the subject A.R.L. map is not admissible in evidence under the common-law, principled approach to the hearsay evidence rule. In this regard, he argues that since the delineation of the regulatory limit is essentially a compilation of opinions of various expert environmental assessors, it is not a document which carries with it an inherent circumstantial guarantee of accuracy. He, therefore, submits that the A.R.L. map containing statements of expert opinion, does not meet the standard of threshold reliability to justify its admission into evidence for the truth of its contents, under the principled approach to the hearsay evidence rule.

[21] In conclusion, the counsel for the defendants maintains that based upon the totality of the evidence adduced during the course of this voir dire, the prosecution has failed to meet its onus, on a balance of probabilities, to rebut the presumption of inadmissibility attached to the subject hearsay document; the A.R.L. map, being exhibits "C" and "C(i)". He is of the view that the evidence does not support a conclusion that the subject map is admissible under either the public documents exception or the business records exception to the hearsay evidence rule, either through the application of the OEA or through common law principles.

Relevant Statutory and Regulatory Provisions

[22] In my view, the following sections of the Conservation Authorities Act, are relevant to the issues which I must decide on this voir dire:

s. 1 In this Act,

'authority' means a conservation authority established by or under this Act or a predecessor of this Act.

ss. 3(4) Every authority is a body corporate.

ss. 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;

(d) providing for the appointment of officers to enforce any regulation 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.

ss. 28(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.

[23] The following provisions of Ontario Regulation 162/06, titled Halton Region Conservation Authority: Regulation of Development, Interference With Wetlands, and Alterations To Shorelines and Watercourses, made pursuant to the Conservation Authorities Act, are relevant to the issues to be decided on this voir dire:

s. 1. In this Regulation,

'Authority' means the Halton Region Conservation Authority.

ss. 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,

(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.

ss. 2(2) All areas within the jurisdiction of the Authority that are described in subsection (1) are delineated as the "Regulation Limit" shown on a series of maps filed at the head office of the Authority under the map title "Ontario Regulation 97/04: Regulation for Development, Interference with Wetlands and Alterations to Shorelines and Watercourses".

ss. 2(3) If there is a conflict between the description of the areas in subsection (1) and the areas as shown on a series of map referred to in subsection (2), the description of areas in subsection (1) prevails.

[24] The following section of the OEA, is relevant to this ruling:

s. 25. Copies of statutes, official gazettes, ordinances, regulations, proclamations, journals, orders, appointments to office, notices thereof and other public documents purporting to be printed by or under the authority of the Parliament of the United Kingdom, or of the Imperial Government or by or under the authority of the government or of any legislative body of any dominion, commonwealth, state, province, colony, territory or possession within the Queen's dominions, shall be admitted into evidence to prove the contents thereof.

[25] The following subsections of the Legislation Act, 2006, S.O. 2006, c. 21, as amended, are relevant to this ruling:

ss. 64(1) An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.

ss. 64(2) Subsection (1) also applies to a regulation, in the context of the Act under which it is made and to the extent that the regulation is consistent with that Act.

Analysis

[26] In considering the evidence adduced on this voir dire and the final legal arguments presented, I accept the submission of the prosecutor that the Approximate Regulation Limit map, being map sheet no. 1179, made in accordance with the provisions of Ontario Regulation 162/06, is admissible in evidence in these proceedings as part of the said Regulation, under section 25 of the OEA.

[27] It is clear that the creation and maintenance of A.R.L. maps are mandated by the provisions of both the Conservation Authorities Act and Ontario Regulation 162/06, made pursuant to the Conservation Authorities Act. In fact, subsection 2(2) of the said Regulation makes specific textual reference to "Regulation Limit" maps as the document which defines the regulatory jurisdiction of the Authority over any particular parcel of land within its watershed.

[28] Furthermore, subsection 28(4) of the Conservation Authorities Act specifically enables conservation authorities to incorporate maps into regulations made by an authority, as a method of defining the limits of their regulatory jurisdiction over the property.

[29] In their testimony during the course of the voir dire, both Watershed Enforcement Officer Nathan Murray and Water Resources Engineer Cory Harris identified exhibits "C" and "C(i)", being A.R.L. map #1179, as the A.R.L. map for the property municipally known as 7459 Auburn Road, Milton, Ontario. They testified that this map defined the limit of the jurisdiction of the Authority over the said parcel of land, by means of a yellow line marking the boundary of the regulated area, including the area shaded in yellow.

[30] Furthermore, the witnesses stated that there are numerous maps domiciled at the head office of the Authority, which cover every part of its watershed. The witnesses stated that these maps are filed both digitally and in hard copy at the said head office in Burlington, Ontario and are available every weekday, during normal office business hours, for examination by the public.

[31] In interpreting subsections 2(2) and 2(3) of Ontario Regulation 162/06, I have applied the provisions of subsection 64(2) of the Legislation Act, 2006, in construing those regulatory provisions both largely and liberally. I am, therefore, satisfied that the Approximate Regulation Limit maps created by the Authority and filed at its head office, are the mandated documents which delineate the extent of the jurisdiction of the Authority over a parcel of land. Accordingly the "Regulation Limit" maps as specifically described in subsection 2(2), are directly connected to Ontario Regulation 162/06 itself and should therefore be construed as being part of the Regulation.

[32] For the reasons stated, I find the subject A.R.L. map identified as exhibit "C" in these proceedings, to be a document incorporated by reference in subsection 2(2) of Ontario Regulation 162/06, as enabled by the provisions of subsection 28(4) of the Conservation Authorities Act, supra. The A.R.L. map forms part of the said regulation and may be admitted into evidence in conjunction with Ontario Regulation 162/06, to prove the truth of its contents, pursuant to section 25 of the OEA. In doing so I have interpreted the term "regulations" in section 25 in a large and liberal manner, so as to include any documents referred to either specifically or by implication in the text of any particular regulation.

[33] In light of my determination to define the subject A.R.L. map as a document which is part of Ontario Regulation 162/06, I am of the view that it cannot be characterized as presumptively inadmissible hearsay evidence. The document is comprised of statements of fact which delineate the extent of the Authority's jurisdiction over the subject parcel of real property. It may be admitted into evidence in these trial proceedings, for the truth of its contents, under the special rules authorizing the admission of copies of regulations under section 25 of the OEA.

The Ruling

[34] For the reasons stated above, the subject A.R.L. maps, being map sheet #1179; both small and large, marked as exhibits "C" and "C(i)" in these proceedings, respectively, are admitted into evidence, as exhibits nos. 16 and 17 on the trial proper, for the truth of their contents.

[35] In light of my determination that the subject A.R.L. map is admissible under section 25 of the OEA, I have not analyzed the balance of the arguments proffered by the prosecutor that the subject map is admissible based upon either the public documents or business records exception to the hearsay evidence rule or by application of the principled approach to hearsay.

Released: August 1, 2017

Signed: Justice of the Peace Kenneth W. Dechert