Court File and Parties
Ontario Court of Justice
Date: 2019-05-08
Court File No.: 4060-6155899B
Between:
City of Greater Sudbury
— and —
Richard Thibert
Before: Justice of the Peace J.G. McMahon
Heard on: March 22, 2019
Decision on: April 3, 2019
Written Reasons released on: May 8, 2019
Counsel
Christian Tremblay — Counsel for the municipality
The defendant Richard Thibert — On his own behalf
Decision
Justice of the Peace J. G. McMahon:
[1] Charge
Richard Thibert was charged with depositing snow or ice on a highway contrary to a municipal by-law. The by-law at issue is City of Greater Sudbury, By-law 2011-219, Road Fouling By-law (13 October 2011), s. 8(1). The offence date was stated as November 21, 2018.
[2] Proceeding
The charge was prosecuted as a Part 1 proceeding under the Provincial Offences Act, R.S.O. 1990, c. P.33 (POA). The trial was held on March 22, 2019.
[3] Finding
On April 3, 2019, I found Mr. Thibert "not guilty" of the offence charged and I indicated that my written reasons would follow.
I. BACKGROUND
[4] Parties and Complaint
Richard Thibert resides in the community of Hanmer, which is located in the City of Greater Sudbury. Emilie Fortier is a neighbour. She made the complaint that led to the investigation and the charge before the Court.
[5] History of Disputes
Richard Thibert and Emilie Fortier share a history of neighbour disputes that have led to other legal proceedings and resulting orders. Whether this unfortunate history helped fuel the complaint against Mr. Thibert was not material to the outcome of this trial.
[6] Trial Evidence
Four witnesses testified at trial: Emilie Fortier—the neighbour and complainant; Gerald Sagle—the by-law enforcement officer; Lise Thibert—the Defendant's spouse; and Richard Thibert. Exhibits were also filed in the course of the trial, including a series of photographs taken by Ms. Fortier on the date of the reported offence. The photographs show, among other things, a tractor transporting and unloading snow across what was identified as Notre Dame Avenue, in the community of Hanmer. The fact that Mr. Thibert was operating the tractor was never at issue.
II. THE NEED TO PROVE A MUNICIPAL BY-LAW
[7] Failure to Prove the By-Law
In my view, the Prosecution failed to prove the municipal by-law creating the offence charged. As a result, a finding of "not guilty" must follow.
[8] Judicial Notice of Municipal By-Laws
Municipal by-laws must be proven. A court cannot take judicial notice of a municipal by-law at common law or by way of statute: see Onyskiw v. CJM Property Management Ltd, 2016 ONCA 477, at paras. 89-90; R. v. Bleta, [1966] 2 O.R. 108; Grand Central Ottawa Ltd. v. Ottawa (City), [1998] O.J. No. 2149 (ONCJ); R. v. Bryce, [2009] O.J. No. 3640 (ONSC), at paras. 40-42; York (Regional Municipality) v. 1085638 Ontario Limited, 2018 ONCJ 658, at paras. 25-26; R. v. Clark, [1974] O.J. No. 1904 (Ont. C.A.); R. v. McLaren, [1981] O.J. No. 51 (Ont. C.A.); R. v. Snelling, [1966] 2 O.R. 273 (Ont. C.A.); Ian M. Rogers, The Law of Canadian Municipal Corporations, (Toronto: Thomson Reuters Canada Limited, 2016—Release 12) at pages 488.21-488.25; John P. Allen, (Hon.) Rick Libman, Handling Provincial Offence Cases in Ontario, (Toronto: Thomson Reuters Canada Limited, 2017) at pages 258-259; S. Lederman, A. Bryant, Michelle Fuerst, Sopinka Lederman & Bryant: The Law of Evidence in Canada, Fifth Edition, (Toronto, LexisNexis Canada, 2018) at page 1404.
[9] Essential Proof
The weight of authority confirms that proof of the municipal by-law creating the offence charged is essential to the Prosecution's case. Proof of a by-law includes its existence, validity and content on the date of the alleged offence. There can be no conviction in the absence of proof of the municipal by-law.
[10] Distinction from Provincial Legislation
It is important to consider that a court must take judicial notice of provincial legislation and regulations: ss. 13 and 29 of the Legislation Act, 2006, S.O. 2006, c.21, Sched. F. The Legislature has not extended similar treatment to municipal by-laws.
[11] Benefit of Judicial Notice
The obvious benefit of the ability to take judicial notice of a fact or a law is that it "dispenses with the production of evidence to prove it": R. v. 'Evgenia Chandris', [1977] 2 SCR 97, at p. 100, per Laskin C.J. In R. v. St. Lawrence Cement Inc., [2002] O.J. No. 3030 (Ont. C.A.), the Court stated as follows, at para. 16:
The requirement that the court must take judicial notice of statutes and regulations avoids the cumbersome and slow process of common law proof by witnesses to authenticate legislation.
[12] Methods to Prove a By-Law
There are two principal ways to prove a by-law in Ontario. First, the Legislature has established statute-based methods to facilitate the proof of municipal by-laws. Second, the prosecution may adduce evidence at trial to authenticate the by-law creating the offence.
Statute-based Methods to Prove a Municipal By-Law
[13] Section 447.6 of the Municipal Act
Section 447.6 of the Municipal Act, 2001, S.O. 2001, c.25 sets out two methods to prove a by-law. First, a copy of the by-law, certified by the clerk of the municipality and under the seal of the municipality, may be filed with the court: s. 447.6 (1). Second, the original by-law "under the seal of a municipality and signed by head of council or presiding officer at the meeting at which the by-law is passed" may be presented in court by the clerk of the municipality or another municipal officer charged with the custody of the by-law: s. 447.6 (5).
[14] Evidence Act Method
The method set out in s. 29 of the Evidence Act, R.S.O, c. E.23 may also be of assistance in proving a municipal by-law: Sorrie v. Cluting, 1955 CarswellOnt 360 (Ont. C.A.), at para. 4; Grand Central Ottawa Ltd. v. Ottawa (City), [1998] O.J. No. 2149 (ONCJ), at para. 8. It is noteworthy that a municipal by-law must be under the seal of the corporation and signed by the clerk and the head of council or the presiding officer at the meeting in which the by-law was passed: Municipal Act, s. 249.
[15] Usual Course of Proof
In the usual course of proving a by-law by way of statute, the Prosecution will formally tender a certified copy of the by-law as an exhibit before the close of its case. In practice, it will be rare for a municipal clerk to attend at trial to tender an original by-law as per s. 447.6 (5) of the Municipal Act.
[16] Agreement Between Parties
The prosecution and defence can certainly agree—expressly or implicitly—as to the existence, validity and content of a municipal by-law. A municipal by-law must be proven in the absence of such an agreement. The POA does permit a court to "receive and act upon any facts agreed upon by the defendant and prosecutor without proof or evidence": s. 46 (4). In a 2011 case, the certified copy of the by-law was present in the courtroom during trial, but it was not filed as an exhibit. On appeal, the Court concluded that—in the circumstances of those proceedings—there existed an implicit agreement between counsel conceding proof of the by-law: Sproule v. Oshawa (City), [2011] O.J. No. 4732 (ONCJ); affirmed R. v. Sproule, [2012] O.J. No. 3767 (Ont. C.A.). In my view, however, an informed and on the record agreement would be required where a defendant is self-represented.
Adducing Evidence to Prove a By-Law at Trial
[17] Proof as a Fact
Where the Prosecution does not avail itself of the statute-based methods to prove a by-law, it must prove the by-law as a fact by the established rules of evidence. As noted above in R. v. St. Lawrence Cement Inc., authenticating legislation by adducing evidence can be an involved process. Similar considerations would apply with respect to by-laws.
[18] Case-by-Case Determination
Whether the evidence, at trial, is sufficient to prove the existence, validity and content of a by-law will necessarily be determined on a case-by-case basis. In R. v. Bryce and York v. 1085638 Ontario Limited, the courts recognized that a by-law can be proven by evidence at trial—even circumstantial evidence. In both cases, however, the evidence was not sufficient to prove the by-law.
[19] Road Signs and Markings
There is a significant body of case law that involves the use of road signs and markings to infer the existence of traffic-related municipal by-laws: see R. v. McLaren; R. v. Clark; R. v. Vaseloff, [2004] O.J. No. 6185; R. v. Sholtens, 2008 ONCJ 282. In R. v. McLaren, at para. 4, the Court of Appeal stated:
Although we are satisfied that it is necessary to prove the existence of the by-law designating a crossover, we are all of the opinion that the evidentiary burden may be satisfied by inference from evidence of the existence of such a crossover indicated by signs and markings of the kind that are commonly associated with pedestrian crossovers in this province. In our opinion, the decision of this Court in R. v. Clark (1974), 3 O.R. (2d) 716, 18 C.C.C. (2d) 52 governs the disposition of this appeal with respect to the proof required to establish the existence of the by-law, and the learned judge erred in law in holding that in the circumstances of this case there was no evidence establishing the existence of the by-law.
[20] Federal Statutes and Regulations
In the somewhat different legal context of proving federal statutes, regulations and subordinate or delegated legislation—older case law points to ways by which the process was facilitated. In R. v. Kishen Singh, the Court confirmed that the trial judge could permit the Crown to re-open its case to remedy an inadvertent omission to prove the proclamation bringing a statute into force—where it did not prejudice the accused. In my view, the exercise of judicial discretion to permit a re-opening would necessarily be guided by the factors identified in more recent case law: R. v. G. (S.G.), [1997] 2 S.C.R. 716. In R. v. 'Evgenia Chandris', the Court decided that judicial notice could be taken of the federal regulation at issue. It added, however, at p. 110, that the trial judge could have directed the prosecution to prove the particular regulation and grant an adjournment for that purpose.
[21] Entrenched Principle
Returning to the provincial context, the requirement to prove a municipal by-law may appear somewhat antiquated in an age where by-law information is often available on municipal websites. It could also appear incongruent with the philosophy said to govern the POA—to ensure that technicalities do not impede deciding regulatory cases on their merits: Ontario (Ministry of Labour) v. Discovery Place Ltd, [1996] O.J. No. 690; affirmed [1997] O.J. No. 1887 (Ont. C.A.). The reality, however, is that the requirement to prove a municipal by-law continues to be an entrenched principle that pre-dates the POA and is, by design, woven into the legislative framework governing the prosecution of regulatory offences. This is illustrated by the following:
The Legislature has provided statutory mechanisms to facilitate the proof of by-laws. The Legislature has not extended the obligation to take judicial notice to municipal by-laws.
The POA provides narrow exceptions by which a defendant can be convicted without the need to prove a municipal by-law: see s. 9(3) where a defendant is deemed not to dispute a charge; see s. 18.4(4) where a defendant fails to appear at a parking trial.
There is an exception that permits a court reviewing a conviction (made without proving a by-law) to dispense with proof of the by-law or relax the manner in which it is proven: Municipal Act, s. 447.5 (1). However, in s. 447.5 (2) the Legislature expressly reminds us that this exception does not alter the requirement to prove a by-law at trial. The provision reads as follows:
447.5 (2) Nothing in this section relieves a prosecutor from the duty of proving the by-law or entitles the convicting court to dispense with such proof.
Application to the Present Case
[22] Statute-Based Methods Not Used
At trial, the Prosecution did not access any of the statute-based methods to prove the by-law. It would have necessarily relied on the admissible evidence at trial.
[23] Examination of By-Law Enforcement Officer
In his examination-in-chief, Mr. Sagle, the by-law enforcement officer, was presented with a copy of the by-law. He was asked whether the by-law had been amended or repealed at any time. He responded that he could not answer the question. He was then asked if the by-law was in force at the time of the offence. He responded that it was. The copy of the by-law was tendered as an exhibit. Mr. Thibert did not object.
[24] Deficiencies in the Evidence
The copy of the by-law was a photocopy. The copy was not certified by the clerk of the municipality. The seal of the municipal corporation was not on the document as required by s. 249(1)(a) of the Municipal Act. The copy shows that it would have been passed on October 12, 2011 and signed by the mayor and clerk at that time. The document before the Court was therefore a copy of a 2011 document. There was no other evidence in relation to the passing of the by-law. Mr. Sagle could not say whether the content of the by-law had been amended. Stated otherwise, Mr. Sagle testified the by-law was in force, but he did not confirm that the content of the copy of the by-law submitted had not changed.
[25] Court's Duty to Assist Self-Represented Defendant
At the close of the Prosecution's case, I raised the issue of the proof of the by-law. The Court had a duty to assist Mr. Thibert who was an unrepresented defendant. That duty included raising and inquiring into legal and evidentiary issues of significance: York (Regional Municipality) v. Grayson, [2016] O.J. No. 5250 (ONCJ), at para. 6; R. v. Richards, 2017 ONCA 424, at paras. 11-113; R. v. A.H., 2018 ONCA 677, at para. 31; R. v. Morillo, 2018 ONCA 582. The Prosecution submitted that there was more than one way to prove a by-law and that the by-law enforcement officer had testified that the by-law was in force. The issue was left for final submissions and the trial continued.
[26] Insufficient Evidence
In my view, the evidence was simply insufficient to prove the existence, validity and content of the by-law at the relevant time. Tendering a photocopy of a by-law dated some seven years ago accompanied by the investigator's assertion that it is in force does not meet the Prosecution's evidentiary burden, especially when the investigator cannot say whether the by-law was amended or repealed at any time.
[27] Problematic Conclusory Statement
Two additional points merit some discussion. First, the by-law enforcement officer's brief statement that the by-law was in force is, in itself, problematic. It is essentially a conclusory statement—absent any facts supporting the conclusion—about a largely legal question—the existence, validity and content of a by-law. Second, the Legislature has provided statute-based methods to facilitate proof of a by-law. To lower the threshold needed to prove a by-law (by way of evidence at trial) by too much may eliminate the point of those statute-based methods and increase the risk of accepting into evidence old by-law provisions now amended or repealed. It has been long recognized that Parliament (and a Legislature) does not speak in vain: Québec (Procureur general) v. Carrières St. Thérèse ltée, [1985] 1 S.C.R. 831, at para. 27.
[28] Alternative Finding
I concluded that the Prosecution's failure to prove the by-law was sufficient to ground a finding of "not guilty". However, if I were in error on this point and assuming that the Prosecution had proven the by-law (a conclusion and an assumption I rejected for the reasons stated above), a finding of "not guilty" had to follow on the merits of the case.
III. DETERMINATION ON THE MERITS OF THE CASE
[29] Merits Finding
On the merits of the case, I would find that the Prosecution established the actus reus of the offence, but that the evidence supported a due diligence defence. A finding of "not guilty" would therefore follow.
Key Findings
[30] Findings of Fact
The following findings flow from the admissible evidence at trial:
Mr. Thibert resides at 4861 Notre Dame Avenue.
Notre Dame Avenue would meet the by-law definition of "highway".
On November 21, 2018, Notre Dame Avenue had been ploughed and the travelled portion of the avenue was apparent from the photographs filed as exhibits.
There is a fenced-in school yard on the opposing side of the avenue from the Thibert residence.
The school fence did not directly border the ploughed and travelled portion of the avenue.
There is a narrow strip of land between the school fence and the ploughed and travelled portion of the avenue. Mr. Thibert testified and I accepted that there was a ditch on that strip of land running along Notre Dame Avenue. There were also utility poles and, at least one fire hydrant.
The photographs filed as exhibits show snow on the ground. The snow is covering visual evidence and indicia of such things as property lines, shoulders, ditches and the surface of the avenue.
With respect to the narrow strip of land between the school fence and the ploughed and travelled portion of the avenue—the photographs and the evidence of the witnesses, including that of the by-law enforcement officer, were insufficient to determine the precise locations of such things as: the lateral boundaries of the avenue or roadway—where they began and ended; the nature, condition and width of any shoulders; the width of ditches; and the location of relevant property lines.
On November 21, 2018, Mr. Thibert was operating a tractor. The tractor was equipped with a front-end loader that he loaded with snow and ice (hereinafter 'snow') from the area of his driveway/private entrance. He transported the snow across Notre Dame Avenue and dumped it in and on the area of the ditch (hereinafter 'in the ditch') located on the narrow strip of land between the school fence and the ploughed and travelled portion of Notre Dame Avenue. He repeated the process a number of times on that occasion.
In the process of transporting the snow, some would have ended up on the travelled portion of Notre Dame Avenue near the entrance to Mr. Thibert's driveway. That amount of snow was relatively small as compared to the amount he dumped in the ditch. He removed the snow that ended up on the travelled portion of the avenue without delay. On this last point I accepted the evidence of Mr. Thibert. Ms. Fortier's testimony wavered on this front impacting its reliability.
The actions of Mr. Thibert on November 21, 2018, did not impact the width of the travelled portion of Notre Dame Avenue.
Mr. Thibert has not repeated the conduct since he was charged.
The By-Law
[31] Offence Provision
For ease of reference, the provision that would create the offence charged would read as follows:
8(1) No person shall throw, push, plow, dump or otherwise deposit any snow or ice on any highway or part thereof, by any means whatsoever, regardless of whether the snow or ice has been removed from an adjoining property, a private entrance or a sidewalk.
[32] Definition of "Highway"
The definitions section of the by-law (s. 1) would include a definition of "highway" that is similar, but not identical, to that found in the Highway Traffic Act, R.S.O. 1990, c. H.8 (HTA). The by-law definition would read as follows:
"highway" means a common and public highway, street, avenue, parkway, laneway, driveway, square, place, and includes any bridge, trestle, viaduct, or other structure forming part of the highway, designed and intended for, or used by, the general public for the passage of vehicles and except as otherwise provided, includes a portion of a highway; and includes the area between the lateral property lines thereof;
[33] Related Definitions
The definitions section also provides definitions for "private entrance", "roadway", "shoulder" and "sidewalk". Each can be considered as part of a "highway". For example, a "shoulder" is adjacent to a "roadway" and has a surface that has been improved with asphalt, concrete or gravel for the use of vehicles.
[34] Actus Reus
In R. v. Shergill, 2016 ONCJ 163, at para. 11, the Court confirmed that the actus reus of an offence is defined by the words of the statute. In this case it is defined by the words of the by-law. The Prosecution had to prove each constituent element of the actus reus of the offence beyond a reasonable doubt. This requirement is grounded in s. 11(d) of the Charter: R. v. Wholesale Travel Group Inc., at p. 248. The wording of the by-law creating the offence would state that the offence may be committed by throwing, pushing, plowing, dumping or depositing snow. The Prosecution had to, however, also prove—beyond a reasonable doubt—that one of those acts resulted in snow on a highway or part of a highway as defined by the by-law.
The Snow Dumped Across Notre Dame Avenue
[35] Reasonable Doubt
There was proof beyond a reasonable doubt that Mr. Thibert transported and dumped snow in the ditch across Notre Dame Avenue on November 21, 2018. I was, however, left with a reasonable doubt as to whether that specific location was on a highway or part of a highway as defined in the by-law. Proof beyond a reasonable doubt is a high standard that was simply not met on this point.
[36] Absence of Evidence
In R. v. Villaroman, 2016 SCC 33, [2016] 1 SCR 1000, at para. 28, the Court confirmed that reasonable doubt can be based on evidence as well as the absence of evidence. No plans, maps, drawings or diagrams of the relevant portions of Notre Dame Avenue were put into evidence. There was some limited witness evidence as to property lines and where the "highway" would begin on the side of Notre Dame Avenue where Mr. Thibert and Ms. Fortier resided. There was an absence of such evidence with respect to the location that mattered most at this trial—the other side of the avenue (i.e. school yard side) where Mr. Thibert dumped the snow.
[37] Insufficient Demarcation Evidence
As noted above, the evidence of the witnesses and the photographs filed as exhibits were not sufficient to establish clear demarcation points between such things as property lines, the roadway, shoulders and ditches. There was an absence of trial evidence with respect to any shoulder at the relevant location. Ditches do not appear to be mentioned in the definitions section of the by-law. Albeit in the context of an HTA trial, one appellant level decision would have confirmed that a ditch is not part of a "highway": R. v. Dyck, 2009 ONCJ 637.
[38] Failure to Prove Actus Reus
As a result, I was simply left with a reasonable doubt with respect to a constituent element of the actus reus of the offence. To repeat—the requirement is that the Prosecution prove every element of the actus reus beyond a reasonable doubt. At this trial, the Prosecution failed to prove that Mr. Thibert's actions—of transporting and dumping snow where he did—made out the specific offence charged.
The Snow Deposited on the Travelled Portion of Notre Dame Avenue
[39] Actus Reus Established
The Prosecution was, however, successful in proving the actus reus of the offence with respect to the snow that ended up on Notre Dame Avenue as a result of Mr. Thibert's conduct.
[40] Broad Language of Offence
The words used to define the actus reus of the offence are quite broad and include to "otherwise deposit any snow or ice….. by any means whatsoever". That language is broad enough to include snow deposited on a highway as a result of the loading and transporting of snow to a different location. Snow was clearly deposited on the travelled portion of Notre Dame Avenue. I was satisfied—beyond a reasonable doubt—that the snow deposited at that location was deposited on a "highway" as defined in the by-law.
[41] Manner of Deposit
For greater certainty, I concluded that the Prosecution established that Mr. Thibert deposited snow on a highway. The Prosecution did not, however, establish that he threw, pushed, plowed or dumped snow onto a highway. The amount of snow on the highway was relatively small, but it was not a trivial amount. The maxim minimus non curat lex—the law is not concerned with the trivial—did not apply in this case.
[42] Strict Liability Offence
Public welfare offences are presumed to be strict liability offences: Lévis (City) v. Tétreault, 2006 SCC 12; R. v. Sault Ste Marie, [1978] 2 S.C.R. 1299. Neither party argued that the presumption was rebutted in this case. My review of the criteria related to the classification of offences did not lead me to question the presumption that the offence at issue is a strict liability offence. It follows that simple negligence during the loading and transporting of snow that results in the depositing of snow on a highway provides a degree of fault that is sufficient to impose liability. It must also follow that Mr. Thibert could avoid liability by establishing—on a balance of probabilities—a due diligence defence.
Due Diligence Defence
[43] Evidence Supports Defence
In my view, the evidence at trial supported a due diligence defence on a balance of probabilities.
[44] Diligent Conduct
Mr. Thibert testified to the effect that he was proceeding with diligence while moving the snow across Notre Dame Avenue. In examination-in-chief, Ms. Fortier agreed that Mr. Thibert was proceeding with caution on November 21, 2018. She also conceded that he had cleaned up some of the snow that ended up on the avenue. Albeit some 5 days later, Mr. Sagle attended at the location and did not see the accumulation of snow on the travelled portion of the avenue. In final submissions, the Prosecution did not dispute that Mr. Thibert was acting with diligence in the operation of the tractor on the day in question.
[45] Prosecution's Argument
The Prosecution, however, argued that it is not a defence to commit an unlawful act in a diligent fashion. The Prosecution would be correct had it adduced sufficient evidence to prove beyond a reasonable doubt that Mr. Thibert committed the offence charged (i.e. an unlawful act) when he transported snow across the avenue and dumped it where he did. It failed to do so.
[46] Spouse's Evidence
Lise Thibert testified at trial, but her evidence was of limited relevance because it was not specific to the date of the alleged offence. Her evidence was much about how her husband would act, in general, when moving snow. It was weighed accordingly. She testified to the effect that: this was not the first time her husband had moved snow to the other side of the avenue; he would do so cautiously; he would clean up any snow that ended up on the avenue; and she would tell him if he missed any. In other words, they were both sensitive to the issue of snow left on the avenue, had turned their minds to preventing it and would initiate an immediate clean-up if it did happen.
[47] Conclusion on Due Diligence
After considering the totality of the evidence—I concluded that Mr. Thibert operated the tractor in a diligent manner, but a relatively small amount of some snow nonetheless escaped his control and ended up on the avenue. He cleaned it up without delay. As a result, he was also "not guilty" of the specific offence charged on the merits of the case.
Released: May 8, 2019
Signed: Justice of the Peace J.G. McMahon