Court File and Parties
Ontario Court of Justice
Date: 2019-10-21
Court File No.: Kitchener 18-272253
Between:
Her Majesty the Queen
— and —
Jason John Geil and Geil Style Enterprises Ltd.
Before: Justice W. G. Rabley
Heard on: October 15, 2019
Reasons for Ruling released on: October 21, 2019
Counsel
Steven O'Meilia — counsel for the Prosecution
Sean Biesbroek — counsel for the Appellants
Reasons for Ruling
RABLEY J.:
[1] The Defendants were charged and convicted under the Conservation Authorities Act, R.S.O. after a trial before His Worship Justice of the Peace J. Ziegler. The Corporate Defendant was fined $20,000. Mr. Geil was fined $10,000 and ordered to serve a jail sentence of 30 days. His Worship also made a Rehabilitation Order to restore the form, function and character of the area.
[2] The Defendants seek to appeal the convictions and sentences imposed. An application has been brought before me for an Order pending appeal to:
file the Appeal without paying the fines;
stay the Order requiring Mr. Geil to serve a jail sentence; and
stay the requirement to complete the Rehabilitation Order.
[3] An Affidavit was filed on behalf of Mr. Geil outlining that it would be impossible for him to complete the rehabilitation within the timelines set out by the court. Mr. Geil also indicated that it would be a hardship for the Corporate Defendant and himself to raise the money to pay the fines in advance.
[4] In support of his application, counsel for Mr. Geil filed an Affidavit from Mr. Jeffrey Thompson who is an Environmental Biologist. He has been retained by the Defendants to provide an expert opinion. It is his view that the completion of the Rehabilitation Order would be impracticable at this time because of the approaching winter season and that "there will be no increased ecological risk or additional impact to the site by postponing the completion of the Rehabilitation Order until another time than that currently set."
[5] Section 112 of the Provincial Offences Act provides that the "filing of a notice of appeal does not stay the conviction unless a judge so orders." As a result, the Defendants have applied under sections 110 and 111 to stay the various orders made by the court.
[6] The test to be applied in this type of application is the same as that set out by the Court of Appeal in R. v. Smug, [1998] O.J. No. 4357. In order to satisfy a court that a stay should be granted, the following must be established on a balance of probabilities:
that the Appeal is not frivolous;
that the continuation of the sentence is not necessary in the public interest; and
that the granting of the stay would not detrimentally affect the public's confidence in the effective enforcement and administration of justice.
[7] The Prosecution agrees that in these circumstances that the sentence of incarceration should be stayed pending the hearing of the appeal. I agree.
[8] With respect to the Rehabilitation Order, the Prosecutor does not consent to a stay but does not vigorously oppose it. In my view, given the Affidavit of Mr. Thompson, the time of the year and the fact that a date can be set for the hearing of the appeal in December of this year, it would be appropriate to stay the Rehabilitation Order.
[9] The central focus of the application is whether the fines should be paid in full before the filing of the Notice of Appeal. The Prosecution strongly opposes a stay and has filed an Affidavit from Megan Irwin, who is a Regulations Officer, with the Grand River Conservation Authority.
[10] The Affidavit notes that the convictions were registered on July 26th, 2019 and that the sentencing took place on September 26th, 2019. Ms. Irwin also states that as of October 7th, 2019, that she observed "a number of large dump trucks arriving at and entering onto the Property." The inference the Prosecutor wishes me to make is that the Defendants continue to violate the law in contravention of Conservation Authorities Act and the Orders of Justice of the Peace Ziegler.
[11] I have heard submissions and reviewed the materials provided to me by counsel. They include the Notice of Appeal, the Affidavits and the Reasons for Judgment. I do not see much merit to the appeal, and I note that the Defendants pleaded guilty to similar offences in the past and then appealed various aspects of the Orders made all the way to the Court of Appeal. The appeals were ultimately denied.
[12] In my view, the granting of the stay would be detrimental to the confidence of the public in this case. The Defendants have already been to the Court of Appeal in similar circumstances. The truck traffic would give the appearance to the public that the Defendants continue to violate the Act with impunity even in the face of convictions by Justice of the Peace Ziegler. Mr. Geil has set out in his Affidavit that the payments of the fines would cause a hardship, but there is no evidence other than his 'bald statement' to support the position that the payment of the fines would be financially crippling or somehow compromise the Defendant's ability to advance their appeal.
[13] Therefore, I would not grant a stay of the payment of the fines. As indicated, I will grant a stay with respect to the period of incarceration to be served by Mr. Geil as well as the completion of the Rehabilitation Order. The time for filing of the Appeal will be extended to November 8th, 2019.
Released: October 21st, 2019
Justice W. G. Rabley