Court File and Parties

Ontario Court of Justice

Date: 2019-09-11

Court File No.: Walkerton 0311 999 17 103 Provincial Offences No.: 1060 999 17 103

In the Matter of: An appeal under clause 116(2)(a) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

Her Majesty The Queen Respondent

— AND —

Thomas Eastman Appellant

Before: Justice Brophy

Heard on: 19 June 2019

Reasons for Judgment released on: 11 September 2019

Counsel:

• Scott Dunsmuir, for the prosecution
• Ian Paul Shaw, for the defendant Thomas Eastman

On appeal from: A conviction by Justice of the Peace Michelle Thompson on 27 November 2018

Judgment

BROPHY J.:

INTRODUCTION

[1] The appellant entered onto a rural property without consent. He was charged under section 2(1) of the Trespass to Property Act, R.S.O. 1990, c. T.21, as amended (herein the Act) for trespassing on private property. He was found guilty at trial of that offence and has brought this appeal against the conviction only.

[2] At trial the learned justice of the peace properly described the charge as a strict liability offence and that the essential components of the offence were made out and the defences of necessity and due diligence did not apply.

ISSUES

[3] The ground for appeal is that the presiding justice of the peace made errors in the interpretation of the aforesaid Act as it applies to the facts of this case.

[4] Specifically, the questions are whether the land that was encroached upon was a woodlot on land used primarily for agricultural purposes or was enclosed in a manner that indicated the owner's intention to keep persons off the premises. This all relates to the question of prohibition of entry on to the subject property as provided for in section 3(1) of the legislation.

[5] The relevant provision of the Act is as follows:

3(1) Entry on premises may be prohibited by notice to that effect and entry is prohibited without any notice on premises,

(a) that is a garden, field or other land that is under cultivation, including a lawn, orchard, vineyard and premises on which trees have been planted and have not attained an average height of more than two metres and woodlots on land used primarily for agricultural purposes; or

(b) that is enclosed in a manner that indicates the occupier's intention to keep persons off the premises or to keep animals on the premises.

[6] The statute says that entry on premises may be prohibited by notice to that effect. In this case there was no posted notice on the eastern boundary of the property that access was prohibited. However, section 3(1) goes on to say that entry is prohibited without any notice on premises of a certain nature or that have been enclosed in a manner that indicates the occupier's intention to keep persons off the premises.

FACTS

[7] The facts are not in dispute.

[8] The appellant, Thomas Eastman, and others were hunting coyotes with the use of hounds when a person in the hunting party, not being Mr. Eastman, shot and wounded a coyote. That coyote was chased by hounds onto a property where Mr. Eastman did not expect to be hunting. This was the property of a Mr. Kenny. Mr. Eastman followed the coyote tracks across a fence onto Mr. Kenny's property. The fence was an old split rail fence with some barbed wire and was in bad condition in some places. Mr. Eastman saw the fence and knew it was a property boundary. He crossed the boundary line on his snowmobile at a location that in his opinion would not damage the fence. After finding the wounded coyote Mr. Eastman shot it on Mr. Kenny's property.

[9] Mr. Kenny, who was walking on trails on his farm property at the time of the incident, heard three gunshots. He confronted Mr. Eastman and told him to leave. He had two concerns about the appellant's entry onto his property. Firstly, he viewed it as a trespass. Secondly, he was concerned for his safety given the discharge of firearms on his land.

[10] The Kenny property was used for agricultural purposes. There are 96 acres in all, 30 acres arable, 50 acres forest and 16 acres watercourses and wetlands. The western boundary of the property was defined for the most part by a watercourse, the southern boundary was posted with No Hunting signs, and the eastern boundary, crossed by Mr. Eastman, was fenced, this being the old split rail and barbed wire fence seen by Mr. Eastman. The area entered by the appellant was a woodlot.

[11] The appellant was familiar with the general area where the Kenny property was located. He lived a short distance away. He also knew that the surrounding area for "many kilometres" was known by him to be in private hands and agricultural in nature.

[12] Mr. Eastman and Mr. Kenny did not know each other and had never communicated in any fashion. Mr. Eastman did not have permission to be on the Kenny property. He did however have permission from ninety per cent of the land owners in the area to hunt on their property.

STANDARD OF REVIEW

[13] Section 120(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, sets out the standard of review and the powers of the court on an appeal under section 116(2) of that said Act:

120(1) On the hearing of an appeal against a conviction or against a finding as to the ability, because of mental disorder, to conduct a defence, the court by order,

(a) may allow the appeal where it is of the opinion that,

(i) the finding should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(iii) on any ground, there was a miscarriage of justice; or

(b) may dismiss the appeal where,

(i) the court is of the opinion that the appellant, although the appellant was not properly convicted on a count or part of an information, was properly convicted on another count or part of the information,

(ii) the appeal is not decided in favour of the appellant on any ground mentioned in clause (a), or

(iii) although the court is of the opinion that on any ground mentioned in subclause (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred.

(3) Where the court dismisses an appeal under clause (1)(b), it may substitute the decision that in its opinion should have been made and affirm the sentence passed by the trial court or impose a sentence that is warranted in law.

(Emphasis added)

[14] It is not the duty of an appeal court to retry the case and substitute its view to that of the learned justice of the peace. The appeal court's duty is confined to a determination of whether the evidence was so weak that a verdict of guilty is unreasonable or unsupported by the evidence, or whether the finding of guilt resulted from a misapplication of the law or, finally, whether a miscarriage of justice has occurred. See R. v. Sarnia Golf & Curling Club Limited, 2004 O.J. No. 3392 and R. v. Canron Inc., (1995) 29 W.C.B. (2d) 180.

[15] Deference is to be afforded to the trial justice of the peace with respect to findings of fact save and except when there is a clear error or misunderstanding of the facts. That is not the case here. The facts are not in dispute and are as set out by the learned justice of the peace in her reasons.

[16] The essential ground for appeal then is a question of statutory interpretation of section 3(1) of the Act as it relates to prohibitions on entry to property where there is no consent provided. This leads to the question of whether there was an error in law as contemplated in section 120(1)(a)(ii) of the Act and it is a matter of mixed law and fact as the issue is the application of the law to the specific facts in this case.

[17] Where an appeal court determines the appropriate legal test was applied, then the resulting findings or inferences of fact should be treated with deference and interfered with only where there is a palpable and overriding error. Where, however, an appeal court determines the legal test was not properly formulated than the test applied and resulting finding can be reviewed with less deference, applying a standard of correctness. See Housen v. Nikolaisen, 2002 SCC 33, at paras 32-33.

ANALYSIS

Woodlot Section 3(1)(a)

[18] There are two areas for review. The first is whether the area encroached upon was a woodlot on land used primarily for agricultural purposes. The second is whether the split rail fence was an indicator of the occupier's intention to exclude persons from the property.

[19] The relevant portion of the learned justice of the peace's decision is as follows:

That Mr. Eastman entered onto the property of Mr. Kenny by driving his snowmobile over a split rail fence and barbed wire. I accept that this fence indicated the occupier's intention to keep persons off the premises and at the very least was known to Mr. Eastman to mark the property line. In this scenario, I cannot imagine the barbed wire, in addition to the split rail fence, would indicate anything other than an intention to keep persons off the property.

That Mr. Kenny's land is in part a garden, in part a field, or other land that is under cultivation, and entry is, therefore, prohibited without any notice on the premises.

[20] The learned justice of the peace said that access was prohibited as provided for in section 3(1)(a) as the property was of such a nature that in accordance with the subsection access would be prohibited. In this regard the language employed by the learned justice of the peace in her reasons did not include a statement that the area encroached upon was a woodlot on land used primarily for agricultural purposes. The paragraph in the reasons speaks only to the land being part of a garden, a field, or other land that is under cultivation. In this case the property that was entered was a woodlot.

[21] A woodlot on land used primarily for agricultural purposes is captured under subsection 3(1)(a) and entry would be prohibited. The learned justice of the peace was aware of the nature of the land, having referred to the various exhibits that included photographs depicting the woodlot and having heard evidence at large about the nature of the property and its agricultural component.

[22] In my view the absence in the reasons of a comment that the land was part of a woodlot on an agricultural property was inadvertent. The reasons indicate that the learned justice of the peace was mindful of the subsection and was fully informed about the nature of the farm and the specific area where the encroachment took place.

[23] The appellant argues that there was an error in statutory interpretation with respect to the woodlot and whether it is captured by section 3(1)(b). The appellant argues that section 8 of the Act, which states:

A notice or permission under this Act may be given in respect of any part of the premises of an occupier

qualifies the deemed notice provisions that apply automatically pursuant to the legislation and that by implication this means that some form of notice should be posted on the woodlot property because it is not directly under cultivation. However, this frustrates the clear intent of the Act to exempt farmers from posting notices across their properties by placing an onus on them to post any subset of their property.

[24] This is particularly the case with woodlots. Effectively the appellant argues that a woodlot must itself be used for agricultural purposes for deemed notices to apply. This interpretation would render meaningless the words "on land" included in clause 3(1)(a). The legislature did not use the wording "woodlots used primarily for agricultural purposes". The principle of statutory interpretation that every word of the statute must be given meaning clearly indicates that the term "on land", which was used, meant that the property as a whole must be considered.

[25] In addition, the word "primarily" does not require any specific amount of land be used for agricultural purposes, but rather that the primary use of the property as a whole be agricultural. There are thousands of possible combinations of workable and non-workable land, including woodlots, and as a result there can be no arbitrary formula or ratio establishing when property is primarily used for agriculture.

[26] In this case the learned justice of the peace determined that the land in question was a woodlot on land that was used primarily for agricultural purposes and the facts rationally support such a determination. Deference is to be shown with respect to that finding. There is no overriding error.

[27] To the extent that it may be necessary the court looks to section 120(3) of the Provincial Offences Act for authority to substitute its decision that the land encroached upon was a woodlot on land primarily used for agricultural purposes if the inadvertent absence of that language in the ruling of the learned justice of the peace is problematic.

Enclosure – Section 3(1)(b)

[28] The learned justice of the peace found that the split rail fence and barbed wire indicated an intention to keep persons off the property. This finding is one that was addressing section 3(1)(b) of the Act with reference to the property being enclosed in a manner that indicates the occupier's intention to keep persons off the property.

[29] The appellant argues that in his view the dilapidated split rail and wire fence was not a clear indicator that the land was not available for hunting and could not be described as enclosing the farm. The appellant argues that the dictionary definition of the word "enclosed" with respect to the Kenny property is not met. In that argument the entire property would have to be enclosed by a fence or structure for clause 3(1)(b) to apply.

[30] However, the appellant concedes that a fence is not the only manner of enclosing premises. In this case the east side of the property, where the appellant entered, was enclosed in its entirety by the split rail fence topped with barbed wire. The west side of the property, unseen by the appellant, was demarcated by a watercourse. The south side of the property, also unseen, was closed to hunting by means of posted signs expressly prohibiting that activity.

[31] It is reasonable to think that the enclosing of the property as contemplated in section 3(1)(b) would vary from place to place and yet still meet the requirement that it was "enclosed in a manner that indicates the occupier's intention to keep persons off the premises". It would be nonsensical to think that a farm property consisting of 96 acres could only be enclosed by a robust modern substantial fence that completely encompassed all the land.

[32] In this case the specific boundary crossed by the appellant was clearly marked by a fence. It signalled that the property was separate from that of the adjoining lands and that care should be taken before entry was made.

[33] The appellant also argues that the "intent" requirement of clause 3(1)(b) was not satisfied because there was no testimony from Mr. Kenny as to his intent, he did not build or establish the fence, the fence is old and decrepit and was originally established to keep animals on the property.

[34] However, this argument is extremely narrow and places an unreasonable burden on landowners. It would require them to rebuild fences upon their purchase of property and to testify at trial as to their mindset in keeping and maintaining fences. In effect it shifts the burden, in this strict liability offence, to the landowner to establish and then re-establish again and again their intent. It also means that persons who wish to access property would effectively have to interview the landowner as to their mindset and the history of the fence. That does not make sense. And it certainly is not in keeping with the purpose of legislation, which is to allow property owners in agricultural areas to be free from unwanted encroachments onto their property without the burden of onerous notification and fencing requirements.

[35] It is noteworthy that Mr. Eastman said he had permission from ninety per cent of the landowners in the area to hunt on their property. Why did he seek their permission? It was in part a matter of courtesy, but it was also because when he went onto someone else's property without that permission he was in some form trespassing. So, when approaching a fence marking the boundary of a property where he did not have the consent of the owner to enter, the fence would tell him that he needed permission. It signalled that he should speak to the owner. It indicated that he should not go on that property until that happened. This can be transposed to confirm the owner's intention with respect to the fence. It indicated that trespassers were excluded. And in that sense the fence was an indication of the occupier's intent to keep persons off the property.

[36] Further, the evidence suggests that the appellant was aware that the fence prohibited entry onto the property in question. He said to the investigating officer and at trial that he only entered onto the property once the fight between the dogs and the coyote escalated and he became concerned. He went on to say that his dogs went on that property on their own because "we've never put a dog in a place that was posted or we knew you – that weren't allowed to hunt. We've never turned a dog in there".

[37] In my view the finding that the fence was a form of enclosure indicating that access was prohibited was open to the learned justice of the peace and was not an error in law and was correct and reasonable.

CONCLUSION

[38] With respect to the woodlot issue, the proper interpretation of the wording "woodlots on land used primarily for agricultural purposes" requires only that the woodlot be situated on property that is used primarily for agricultural purposes. This in fact is the case here. The learned justice of the peace's findings are owed deference as there was no palpable and overriding error. This finding is well supported by the evidence at trial and as such should not be disturbed.

[39] As for the enclosure question the interpretation of the word "enclose" as well as the phrase "in a manner that indicates the occupier's intention to keep persons off the premises" is a question of law. In this case the learned justice of the peace found that the rail fence properly signalled the intent to exclude persons and is owed deference and should only be interfered with in the absence of a palpable and overriding error. This conclusion by the learned justice of the peace is also well supported by the evidence at trial and should not be disturbed.

[40] In sum, the issues related to prohibition of entry as contemplated in section 3 of the Act were addressed in a meaningful and coherent way by the learned justice of the peace and were in keeping with a proper interpretation of the relevant sections of the Act. In my view the finding of guilt was completely supported by the facts and law and the decision was one which satisfied the test of reasonableness.

[41] The appeal is dismissed.

Released: September 11, 2019

Signed: Justice Brophy