Ontario Court of Justice

Date: 2020-02-25

Court File No.: United Counties of Stormont, and Glengarry 18-844

Between:

GILLES RENAUD

— AND —

IAN BLACKBURN and HILARY BLACKBURN

Before: Justice of the Peace M. Coopersmith

Heard on: September 20, 2019 and November 6, 2019

Reasons for Judgment released on: February 25, 2020

Counsel

Michael A. Johnson — counsel for the prosecution

James Moak — agent for the defendants

JUSTICE OF THE PEACE COOPERSMITH:

[1] Information and Charges

[1] On December 18, 2018, Patrick Dussault, on behalf of Gilles Renaud, laid an information for a private prosecution against Ian Blackburn and Hilary Blackburn. The information alleges that Ian Blackburn and Hilary Blackburn committed the following six offences in the Township of South Stormont:

1. Between June 18, 2018 and September 19, 2018, did erect or cause to be erected a solid fence that is more than 1.5 meters in height on residential property, contrary to section 3.1 of South Stormont By-law 2006-69;

2. Between September 19, 2018 and December 18, 2018, did erect or cause to be erected a solid fence that is more that 1.5 meters in height on residential property, contrary to section 3.1 of South Stormont By-law 2006-69;

3. Between June 18, 2018 and September 18, 2018, did erect or cause to be erected a fence of open type construction over two meters in height back of the front wall of the main building on residential property, contrary to section 3.1 of South Stormont By-law 2006-69;

4. Between September 19, 2018 and December 18, 2018, did erect or cause to be erected a fence of open type construction over two meters in height back of the front wall of the main building on residential property, contrary to section 3.1 of South Stormont By-law 2006-69;

5. Between June 18, 2018 and September 18, 2018, did erect or cause to be erected a fence in an urban area, over one metre in height between the front wall of the main building and the front lot line, contrary to section 3.2 of South Stormont By-law 2006-69;

6. Between September 18, 2018 and December 18, 2018, did erect or cause to be erected a fence in an urban area over one meter in height between the front wall of the main building and the front lot line, contrary to section 3.2 of South Stormont By-law 2006-69.

[2] The defendants brought an Application to dismiss the charges laid privately against them. The Application contained five issues. I received documentary evidence, heard viva voce evidence and listened to submissions from both parties on September 20, 2019, following which I reserved my ruling on the Application and commenced the trial proper. On November 6, 2019, I dismissed all the grounds contained in the Application and heard the rest of the trial evidence and the parties' trial submissions. The parties agreed that the documentary evidence from the Application would apply to the trial.

I. ISSUES

[3] There are several issues to be determined. The principle issues are:

1. Is the Blackburns' fence either a legally non-conforming fence replacing a hedge under section 9.2 of the Fence By-Law or existing as an exemption to the Fence By-Law by resolution of Council under section 9.3?

2. If not, does the height of the fence comply with the height requirements under section 3.1 and section 3.2 of the Fence By-Law?

3. If not, have the Blackburns satisfied the defence of officially-induced error or a due diligence defence?

[4] The answers to all these questions are provided in my "Analysis and Findings" below. In the end, I find Ian Blackburn and Hilary Blackburn guilty of counts 1, 2, 5 and 6. I am dismissing the charges for counts 3 and 4.

II. BACKGROUND

[5] The following provides the background events that underlie these charges and my findings based on documentary evidence and the viva voce evidence of Gilles Renaud, Dan Bissonnette, Loriann Harbers, Hilary Blackburn and Maurice Gatien.

[6] Gilles Renaud and Nancy Miller [the "Renauds"] own property adjacent to the Blackburns, on Sunset Drive in an urban area of Long Sault, which is in the Township of South Stormont ["Township"]. The Renaud property is just east of the property owned by Ian Blackburn and Hilary Blackburn. The road is towards the southern portion of these properties and the water is to the north. There is a fence the Blackburns caused to be erected that runs north/south between these two properties. The construction of the fence began on or about the 4th or 5th of September 2017. This is the fence that has triggered the charges in these proceedings.

(a) The Hedge

[7] The Renauds moved into their property on December 16, 2013. The following spring, they met their neighbours, Ian Blackburn and Hilary Blackburn. In October 2015, the Renauds had the northern portion of the cedar hedge, in the backyard between the two properties, removed. Since it was their hedge, they paid the entire cost for its removal. A September 7, 2017 photograph of the fence illustrates a hedge still in place behind the southern portion of the Blackburn's fence. In April 2018, the Renauds removed the rest of the hedge to the street, but until the start of the construction of the fence on or about September 5, 2017, that remaining hedge separated the two properties.

[8] Ms. Blackburn testified that the hedge straddled the property line in places and she and her husband did not pay for it to be taken down because "we didn't want it taken down". She claims that their fence replaced some of the hedge that had already been removed when the fence was originally erected and, hence, complies under section 9.2 of the Fence By-Law. From discussions with Ms. Miller, the Blackburns were under the impression the rest of the fence was going to be removed by their neighbours. The Township has never taken a position on this issue.

(b) September 2017 – Initial Construction of the Fence

[9] On September 5, 2017, in response to a complaint from Mr. Renaud, who believed the fence adjacent to his property to be over ten feet high, Township By-Law Officer Bissonnette, standing on the Blackburn property, measured the newly-erected fence. The fence was set back a few feet from the road and extended back along the east side of the front lawn and beside the house, towards the water at the back of the property. A photograph taken by Officer Bissonnette that day illustrates a fence that appears to be at least a couple of feet taller than Mr. Blackburn, who is standing in front of the fence. Behind the fence are hedges that tower several feet higher than the fence. With both the hedge and the fence standing side-by-side, Officer Bissonnette opined that the fence was not replacing the hedge, as something had to be taken away in order to put something else in its place. Officer Bissonnette advised the Blackburns that the fence was at least eight feet high and needed to be lowered, as it did not comply with the Fence By-Law. From the front wall of the house backward towards the water, the Fence By-Law permitted a height of five feet with an additional foot and a half of lattice. Forward from the front wall, the height of the fence should not have exceeded one metre or approximately thirty-nine inches.

[10] On Officer Bissonnette's second visit to the property on September 5, 2017, he observed pieces of wood screwed into either end of the fence and a clothesline wire strung between these pieces. Several large sheets of material hung on a line strung against the Blackburns' side of the fence. Mr. Blackburn claimed that the structure between the two properties was a clothes line, not a fence. Clearly, this was not the case and I heard nothing more of it in the defendants' arguments.

[11] On September 7, 2017, Officer Bissonnette served the Blackburns with a formal written Order under the Township of South Stormont, By-law No. 2006-69, Fence By-Law (13 September 2006). Mr. Blackburn refused to accept the Order, but Officer Bissonnette managed to throw it inside the residence just before Mr. Blackburn closed the door. As the Officer was walking away, the Order came flying back in his direction. Officer Bissonnette discovered that the Order was later delivered back to the Township in a garbage bag.

[12] The Order required the Blackburns to "a) forthwith cease the construction of the fence structure currently underway and further; b) on or before September 13, 2017 either; 1) completely remove the existing fence; or 2) reconstruct the fence to meet the height provisions of By-law No. 2006-69 s.3.0, outlined above." Failure to comply would result in enforcement action by the Township in accordance with the provisions of the by-law. The September 13, 2017 deadline for compliance passed with no changes made to the fence.

(c) October/November 2017 – Further Construction to Alter the Height of the Fence

[13] Under section 9.3 of By-law 2006-69, Council may, by resolution, allow an exemption to the Fence By-Law. On October 4, 2017, Mrs. Blackburn and her daughter met with Loriann Harbers, Director of Corporate Services and Clerk for the Township, to discuss the fact that the fence was too high. Ms. Blackburn testified that Ms. Harbers proposed a solution to allow the fence to be solid and six feet, six inches above grade for its entire length. On October 11, 2017, the Blackburns emailed the Township and advised they would like to proceed with the proposed solution to lower the fence to 6.5 feet above grade. On October 17, 2017, the Blackburns' daughter, Julia Blackburn, emailed Ms. Harbers requesting something in writing from the Township that would provide a first and final solution.

[14] In October 2017, Mr. Renaud noticed that work had been done to lop off a significant portion of the fence. The metal posts were not cut until several days after the fence planks had been lowered.

[15] Ms. Blackburn testified that, in October 2017, she received a registered letter stating the fence still did not comply. She called Ms. Harbers who advised that they had to finish the back of the fence to cover the bracings on the Renauds' side.

[16] On November 8, 2017, Hilary Blackburn emailed Loriann Harbers and advised the Township that the fence was almost finished and measured six and a half feet from grade. Photographs taken by By-Law Officer Bissonnette in November 2017 illustrate that this was not the case.

[17] At his November 8, 2017, re-visit to the Blackburn property, Officer Bissonnette found that the height of the fence had been considerably lowered. There were five metal posts that were a little shorter than the thirty-four vertical planks that made up the wooden sections of the fence. The finished side of the fence was towards the Blackburn property. The officer measured the metal posts. He testified that the land slopes down as one goes towards the water and, starting from the road, three of the posts measured 80 inches, 82 inches and 86 inches. None of the portions of the fence were under six and a half feet; none were in compliance with the Fence By-Law.

[18] On November 16, 2017 and November 28, 2017, Ms. Harbers, from the Township, sent registered letters advising the Blackburns that the fence did not comply with the Fence By-Law and that they had until December 18, 2017 to bring it into compliance. Furthermore, the Township would return to re-inspect the fence and, if not in compliance, a determination would be made whether to proceed with charges. Her November 28, 2017 letter went on to say, "I wish to clarify that arrangements made by staff cannot prevent Council from enforcing any by-law in the future." Ms. Blackburn testified that she knew that no matter what the discussions were between Ms. Harbers and herself, that did not bind the Council.

(d) January/February/March 2018 – Order to Comply with Fence By-Law; Blackburns Retain Legal Counsel

[19] On January 5, 2018, Ms. Blackburn and her daughter spoke to Mayor Jim Bancroft. The Mayor advised that he did not know what the path forward would be. Nonetheless, it was the Blackburns' understanding that there would be no prosecution. The reasons for this understanding were never revealed at trial.

[20] On February 20, 2018, Ms. Harbers sent another letter, informing the Blackburns that at the February 13, 2018 Council meeting, Council directed staff to serve notice that the Township required compliance with By-law No. 2006-069. The letter was the final notice and confirmation that the Blackburns were ordered to "1) Completely remove the constructed fence; or 2) Reconstruct the fence to meet the height provisions of By-law No. 2006-069 section 3.2 being 1 metre by April 16, 2018; and 3) If the fence is reconstructed, it must be constructed as a "Good Neighbour Fence" as defined in By-law No. 2006-069, by April 16, 2018". The Township would be returning to re-inspect on or about April 16, 2018, at which time, if compliance had not been attained, charges under Part III of the Ontario Provincial Offences Act would be brought. When Ms. Blackburn told Ms. Harbers that even the strictest interpretation of the Fence By-Law did not require them to reduce the whole fence, Ms. Harbers advised the Blackburns to retain a lawyer.

[21] In March 2018, Ms. Blackburn contacted the Ontario Ombudsman because she felt the Township had been misleading and had reneged on their agreement. She learned that because they were measuring the structure from the paving stones, rather than from the grade, they were a few inches off in their measurements. Ms. Blackburn had read the Fence By-Law and understood that the fence could be one and a half metres high with a foot and a half of lattice on top.

[22] In March 2018, the Blackburns contacted and met with a lawyer, Maurice Gatien, who advised them he would converse with the Township.

(e) April/May 2018 – Removal of the Rest of the Hedge and Measurements of the Fence

[23] At the end of April, the Renauds removed the rest of the hedge from the road to the back of their house.

[24] At the request of Loriann Harbers, Officer Bissonnette returned to the Blackburn property on April 30, 2018. With the assistance of Hilton Cryderman, the Township's Building Inspector, he measured the fence. It was twenty-eight feet and eleven inches long. The south end of the fence, which is closest to the road, measured 2.06 metres from grade. The north end of the fence measured 1.975 metres from grade. The exterior of the gate housing measured 2.28 metres from grade, not counting the piece on top of the housing. The centre of the fence was 1.97 metres and was a further 0.055 metres above grade. Officer Bissonnette also observed that the remaining hedges on the Renaud side of the fence had been cut down to the ground. On May 2, 2018, Officer Bissonnette sent Ms. Harbers photographs and emails containing these measurements.

(f) May 2018 – Further Construction to the Fence and Charges Laid by the Municipality

[25] In May 2018, the Blackburns asked their carpenter to correct the few inches in the height of the fence that had been brought to their attention. In early May 2018, Mr. Renaud observed Mr. Lapierre, the Blackburns' carpenter, cutting the fence by a very small degree – no more than two inches.

[26] On May 23, 2018, the Township laid five charges under the Fence By-Law against the Blackburns – two counts under section 3.1 (fence height limitations, back of front wall) and one under each of sections 3.2 (fence height limitations, from front wall to front lot line), 2.14 (Good Neighbour Fence) and 6.2 (compliance with Order within specified time period). These offences were alleged to have occurred between September 5, 2017 and May 1, 2018.

[27] On May 30, 2018, the Blackburns ordered seven hundred dollars worth of wood and had their carpenter ready to finish the back of the fence, in order to comply with the "Good Neighbour" aspect of the Fence By-Law. When Ms. Blackburn spoke to Mr. Renaud, he denied permission to go onto his property. He testified that Ms. Blackburn did not specify the work that was going to be done to the fence, while Ms. Blackburn testified that she advised Mr. Renaud they wanted to finish the back of the fence regarding the "Good Neighbour" aspect. Ms. Blackburn had not offered to reduce the height of the fence to comply with the provisions of the Fence By-Law and, hence, Mr. Renaud would not grant permission for work to be done while the fence remained non-compliant. In his May 30, 2018 email to Ms. Harbers, Mr. Renaud advised "we will not object to the presence of workers on our property to bring the fence down to the correct height and to then have it comply with the other requirements such as a mutually pleasant finish. But any request to have the fence "finished" in a state of breach will be rejected."

(g) August 2018 – Directive Passed by Council and Further Negotiations

[28] A Township of South Stormont "Directive" was passed by Council on August 15, 2018, that instructed the Township solicitor to "proceed with the recommended resolution pertaining to the Blackburn fence issue outlined in the email dated August 14, 2018." The referenced email was not entered into evidence. Mr. Horner had advised Mr. Renaud that it is a privileged document and would not be provided to anyone.

[29] Ms. Loriann Harbers, as the Clerk for the municipality, is responsible for drafting and presenting resolutions to Council. Once they are dealt with by Council, she is responsible for the records management of the resolutions and subsequent general follow-up and providing them to the appropriate parties. As Clerk for the Township, she has attended every Council Meeting since September 2017. Consequently, she knows no resolution was ever passed by Municipal Council regarding the fence between the Blackburn property and the Renaud property and, in particular, nothing in relation to sections 9.2 or 9.3 of the Fence By-Law. On April 2, 2019, Ms. Harbers sent correspondence to both the Renauds and the Blackburns to clarify that, since September 2017, there had been no resolution passed relative to section 9.2 or section 9.3 of the Fence By-Law.

[30] In cross examination, Ms. Harbers explained that the August 15, 2018 Township of South Stormont Directive was prepared as a result of Township Solicitor Eldon Horner's email to Council. The Directive was moved by Councillor Richard Waldroff and seconded by Deputy Mayor Hart and Council voted in favour of the Directive. The Directive was done in a closed meeting and not in an open session of Council. In re-examination, Ms. Harbers explained that there is a difference between a "directive" and a "resolution" as referenced in section 9.3 of the Fence By-Law. Under section 239 of the Municipal Act 2001, S.O. 2001, c.25, as amended, Council Members may go into a meeting closed to the public to give directions to an employee or someone retained by the Municipality to have something done, such as was done in this case. Nonetheless, Council cannot pass resolutions other than in open session.

[31] In attempts to negotiate with Mr. Horner, on September 5, 2018, Mr. Gatien, counsel for the Blackburns, sent an email to discuss the manner in which the Blackburns were prepared to proceed, with a view to resolving the various issues. It included, inter alia, a plea of guilty to the Good Neighbour Fence aspect and a fine of seventy dollars each. Within thirty days of acceptance of this proposal, the Blackburns would lower the fence by one foot, but a one-foot lattice would be allowed for the portion of the fence aligned with the side of the house. As well, the decorative over-hang above the gate would be eliminated and the gate restored to its former height. The Blackburns would sign a Release in favour of the Township for any and all claims they may have in relation to the fence, up to and including the day after their guilty pleas are entered. The remaining counts would be adjourned and, assuming all the work was done, the Municipality would attend the Provincial Offences Court and withdraw the remaining charges and release the Acknowledgement to the Blackburns.

[32] Mr. Gatien had prepared an Acknowledgement for the Mayor and Clerk to sign, acknowledging that if the Blackburns complied with the terms within the thirty-day period set out in the August 20, 2018 email from Mr. Gatien to Mr. Eldon, the Municipality would not proceed with any further charges and "will accept such modified Fence to not be non-conforming with the provisions of By-law 2006-69". The Acknowledgement the Township prepared and that eventually was signed on September 20, 2018 omits these words and contains instead, "will take no other enforcement proceedings under By-law 2006-69 with respect to the modified Fence." This was not what Mr. Gatien originally wanted, but what he got. At the time, Mr. Horner explained to Mr. Gatien that the Municipality was reluctant to make a definitive statement about 'conforming' because they were concerned about being sued by the complainant in these proceedings.

[33] Mr. Horner had explained to Mr. Gatien that, under the Municipal Act, the Municipality is a legal person and could do what it wished and did not need to be overly-clear about what its position was under the by-law. It was Mr. Gatien's understanding that the Municipality would not be proceeding with further charges if the Blackburns undertook to do what was proposed within the thirty days.

[34] Mr. Gatien explained to his clients, the Blackburns, that they had the choice of either accepting this deal or proceeding with a full hearing, which would have incurred significant costs, and that this arrangement made sense to do. He explained that there were several defences available to them, such as timing of the six months to bring charges and the grandfather aspect of the by-law under section 9.2 because of the height of the hedge, which Mr. Gatien thought probably would have been successful. Since there is always an element of risk in court, he advised that they had to look at the practical reality, plus all the costs involved and it made sense to accept the compromise, with the Municipality getting a conviction on the technical aspect of the "Good Neighbour" provision of the Fence By-Law. He explained the proposed resolution in full to the Blackburns and received instructions from them to plead guilty to the Good Neighbour Fence aspect and the other charges would be withdrawn. Subject to the thirty days, everything would be fine and it would be over.

[35] Mr. Horner never told Mr. Gatien that, despite the deal, Mr. Renaud had the right to bring a private action against the Blackburns. Mr. Gatien did not advise his clients that the decision of the Municipal Prosecutor did not affect Mr. Renaud and his ability to seek private remedies. Mr. Gatien does not typically do much Provincial Offences work and, at the time he was providing legal services to the Blackburns, he did not appreciate the difference between the rights that a private individual has to bring a prosecution under section 23 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, versus a municipality's rights to do so under section 22 of that Act. Since then, he has read up on these rights. However, at the time, it was not a part of his discussions with his clients or with Mr. Horner.

(h) September 2018 – Further Construction to Height of the Fence

[36] On September 17, 2018, Mr. Gatien informed the Blackburns, in writing, about what they needed to do and what remedial action they needed to take so that the Township would accept the fence. The Blackburns called their carpenter, who arrived the next day and removed one foot from the top of the fence. For the portion of the fence behind the front wall of their house, it could be higher and they could add lattice to the top to restore the height to two metres. From their conversations with Mr. Gatien, the Blackburns believed that would settle the case and that they would have to plead guilty to not finishing the back of the fence, even though they were not given permission to do so, and that there would be no further prosecution about the fence.

[37] On September 18, 2018, as a result of the discussions the Blackburns had with their lawyer, who they believed had negotiated the resolution with Mr. Horner, Ian and Hilary Blackburn signed a "Full and Final Release", forever discharging the Township of South Stormont from any and all actions, claims and demands arising out of the construction/modification of the fence. The Blackburns signed the release in exchange for some charges being withdrawn and entering their plea in court.

[38] On September 29, 2018, in an email to Gilles Renaud, with a cc to Maurice Gatien, Mr. Horner indicated that the Township would be proceeding with the resolution of its prosecution on October 23, 2018 (which was later adjourned to November 20, 2018). To that date, the Township had incurred extraordinary costs for a by-law prosecution and it was Mr. Renaud's understanding that the Municipality would take no further action after its 2018 prosecution. Mr. Horner's understanding of the facts stated, inter alia, "No agreement exists anywhere to the best of my knowledge and belief that indicates the fence, as it is to be modified complies with the by-law. It might if s.9 applies. It might still be in contravention. The Twp takes no formal position on what it seems will require judicial adjudication." Mr. Gatien testified that he had discussions with Mr. Horner in that context. He further testified that the issue of officially-induced error did come into the discussions aimed at resolving the matter between the Municipality and the Blackburns, as noted in paragraph 2 of Mr. Horner's September 29, 2018 email, where it states, "Staff at the Township tried to engage in form of what we now know was ill advised "mediation" for lack of a better term. No contract was entered into, no assurances given. I want to be clear here that the Blackburns have not made any allegations of "officially induced error" or the like. I believe the fence was fully completed before the Township had discussions (but I may be in error on this point)".

[39] Mr. Renaud did not have input into the municipal prosecution of these defendants. There had been offers and counteroffers over a period of time. Although he was kept informed as things unfolded, he was never given a document that expressed a final agreement. Officer Bissonnette reported to Loriann Harbers at the time. He, too, had no idea of any negotiations between the Township's lawyer, Mr. Elton Horner, and Maurice Gatien, the Blackburns' lawyer.

[40] On October 18, 2018, again, at the request of Loriann Harbers, Officer Bissonnette returned to the Blackburn property, along with Hilton Cryderman. The Blackburns had leveled the slope with fill and put stone on top of it, so that the grade was raised as opposed to the lowering of the fence, to bring its height closer to compliance. Officer Bissonnette refers to 'grade' as the level of the land and if one puts a brick up against the fence, that does not automatically change the grade or height of the fence. Instead, grade is taken to be the finished level of the land and if fill is added to adjust the level of the land, grade would be the top of the fill. Officer Bissonnette's concern was with the portion of the fence that was forward from the front of the house. The part closest to the road was sixty-two and three-quarters inches from raised stone, which was three and a half inches from grade, for a total of sixty-six and a quarter inches from grade. The permitted height would have been three feet or thirty-six inches. The middle of the fence was sixty-four and a half inches from the raised stone, which was one and seven-eighths inches from grade. Moving north to just before the lattice topper, the fence measured sixty-five and five-eighths inches from the raised stone, which was approximately a quarter of an inch from grade. The portion to the rear of the front of the Blackburn's house could be five feet high, with a foot and a half of lattice. Officer Bissonnette did not recall seeing the construction of the lattice until this visit to the property, nor do any of the photographs he took at previous visits show the presence of this lattice. There was an arbor-type of arrangement over the gate at the back of the fence. The top of the outside gate post was seventy-eight and nine-sixteenths inches from grade, the centre of the gate was eighty-one and three-eighths inches from grade and the top of the inside gate post was seventy-eight and five-eighths inches from grade. The gate components also had to comply with the five feet of solid fence topped with one and a half feet of lattice.

[41] In cross examination, Officer Bissonnette accepted that the By-law allows a fence back of the front wall of the residence to be seventy-eight inches high, consisting of sixty inches solid fence topped by eighteen inches of lattice. Consequently, the fence back of the front wall of the house that measured seventy-six and five-eighths inches complies with the By-law. The far south end of the fence was 2.06 metres and it is the part of the fence between the front wall of the house and the front lot line that does not comply.

[42] Officer Bissonnette also agreed that between June 8, 2018 and December 18, 2018, no new fence was "erected". There was a height adjustment and minor finishing touches made, but it was still the same fence. It is Mr. Renaud's position, however, that if work on the fence had already commenced, then any further construction work is part of "erect or cause to be erected". He testified that, between June 18, 2018 and September 18, 2018, the entire fence was twelve inches higher than after that time period. On or about September 18, 2018, further work to the fence was undertaken, at which time the fence was lowered by about one foot, with about a one-foot lattice allowed on the portion of the fence that aligned with the side of the house. The fence had been a work in progress over these years, with work done to it "every so many months". To date, no further work has been done to the fence.

[43] Mr. Renaud measured the fence on September 19, 2019 and again on November 5, 2019. At the south end, it measured seventy-seven inches. Moving northward to where the lattice work begins, it measures approximately eighty-four inches. He opined that the fence could be one and a half metres at that point and it could be up to two metres or six and a half feet where the lattice was added, under section 3.1 of the Fence By-Law. Towards the road, it could be one metre or thirty-nine inches in height under section 3.2 of the Fence By-Law. Where the lattice work was, he measured the height at seventy-eight and nine-sixteenths inches, exceeding the two-metre limit by less than an inch. This was not of concern to Mr. Renaud, but the gate exceeding that limit by three and a half inches was.

[44] Mr. Renaud indicated that his more recent measurements of the fence are within an inch of those taken by Officer Bissonnette. He attributed this to the fact that he did not have someone to assist him as he took the measurements and, hence, may be somewhat off in his measurements. He did not agree that this also could be explained by the fact that Officer Bissonnette took his measurements from the Blackburns' side of the fence, where the grade was raised as much as three to four inches higher than the grade on the Renauds' side, as Mr. Renaud measured only the wood part of the fence, without adding the distance from grade to the bottom of the fence. Mr. Renaud is content to defer to Officer Bissonnette's measurements.

(i) November 20, 2018 – Prosecution by Municipality

[45] On November 20, 2018, Mr. Huza, a lawyer in Mr. Gatien's office, attended at court for Ian Blackburn and Hilary Blackburn. Justice of the Peace Brecher accepted the guilty pleas and convicted each of the defendants of one count contrary to section 2.14 of the Fence By-Law ("Good Neighbour Fences" clause). A fine of seventy-five dollars per defendant was imposed. The remainder of the charges were withdrawn. The measurements provided to Justice of the Peace Brecher and submitted and/or accepted by both parties to that prosecution are provided as follows:

• Far south end of the fence – 62 ¾" from the raised stone (3) which was 3 ½" from grade (4)
• Middle of the fence – 64 ½" from the raised stone (5) which was 1 7/8" from grade (6)
• Last post on north end before lattice topper – 65 5/8" from the raised stone (7) which was approx. ¼" (not measured) from grade
• Top of lattice – 76 5/8" from grade (8)
• Top of outside gate post – 78 9/16" from grade (9)
• Top centre of the gate – 81 3/8" from grade (10)
• Top of the inside gate post – 78 5/8" from grade (11)

[46] The "Synopsis for Guilty Plea" was provided to Mr. Renaud after the plea proceedings had concluded.

[47] Mr. Horner, as Municipal Prosecutor, stated that the height of the fence was not an issue for the prosecution or the defence in that proceeding and the Municipality was not taking any position on the applicability of section 9.2 or section 9.3 of the Fence By-Law. Relating to comments that an argument could be made by the Blackburns that what they have done is replace the previous nine and a half foot high hedge with a five and a half foot high fence, as provided for under section 9.2 of the Fence By-Law, Mr. Horner states "I don't know whether they would've been successful at a trial with that defence or not. The bottom line is in an exercise of prosecutorial discretion, Your Worship, we determined that we didn't wish to spend the extraordinary amounts of money that it was apparent were going to be spent and time before the Court to decide that issue."

(j) December 18, 2018 – Private Prosecution

[48] After the prosecution by the Township, Mr. Renaud measured the shortest end of the fence as higher than the by-law limit of thirty-nine inches, as he had to hold the tape measure above his head to reach the top of that part of the fence. On December 18, 2018, Mr. Renaud went with Mr. Dussault to measure the fence. Mr. Dussault advised Mr. Renaud that the fence was higher than thirty-nine inches and that the height was consistent with the measurements submitted in the November 20, 2018 court proceedings.

[49] On December 18, 2018, this private prosecution commenced when Patrick Dussault, on behalf of Gilles Renaud, laid an Information alleging six counts against each of the Blackburns – four counts pursuant to sections 3.1 and two counts pursuant to 3.2 of the Fence By-Law, occurring between June 18, 2018 and September 18, 2018 and between September 19, 2018 and December 18, 2018. The Justice of the Peace issued process.

III. SUBMISSIONS

(a) Defence Submissions

[50] Mr. Moak, agent for the defendants, relies on "officially-induced error", as well as a defence of "due diligence". Ian and Hilary Blackburn relied upon what they were informed by the Township and by their lawyer, Mr. Gatien. They did everything reasonable to comply. Furthermore, he submits that the Fence By-Law does not define "erect". There was nothing erected between June 18 and September 18, 2018 or between September 19 and December 18, 2018. The by-law also is vague about which neighbour's "front wall of the building" is referenced. Additionally, he submits that Mr. Bissonnette admitted that the fence back from the front wall of the house conforms with the by-law and, hence, counts 3 and 4 should be dismissed. Moreover, the court should not rely on Mr. Renaud's measurements, as they were taken from Mr. Renaud's side of the fence, where ground level is three or four or maybe more inches below that on the Blackburns' side of the fence.

(b) Prosecution Submissions

[51] Mr. Johnson, counsel for Gilles Renaud, submits that the Blackburns did not get the right legal information, as Mr. Gatien did not think to discuss with his clients what, if anything, could be done about Mr. Renaud's right to pursue a private prosecution. The Township clearly did not include this concept in its final directive because it did not want to cause further potential issues with Mr. Renaud. There is no basis to believe Mr. Renaud cannot bring a private prosecution. Mr. Horner never said that if the Blackburns plead guilty, Mr. Renaud would never be able to bring a private prosecution and Mr. Gatien never thought to inquire about this issue. Unfortunately, the Blackburns entered a guilty plea on November 20, 2018 without knowing the entirety of the legal consequences of doing so. Officially-induced error of law falls right away, as they were not informed by their lawyer that there could be a private prosecution, because their lawyer did not canvass the area and did not know Mr. Renaud could bring a private prosecution.

[52] It was not until after October 2018, that portions of the fence came into compliance with the by-law. Even if the lattice portion complies, the posts bring the overall fence over the regulated limit.

[53] Ms. Harbers' registered letter to Mr. and Mrs. Blackburn, dated November 28, 2017, states clearly, "I wish to clarify that arrangements by staff cannot prevent Council from enforcing any by-law into the future." The fence was never brought into compliance from the moment it was built, save and except for small portions that come close to compliance, and the fence was always being erected because it was always being constructed.

[54] An individual cannot violate the law and enter a plea and thereafter be left in a state of perpetual offending, simply because they accepted responsibility for the violation having occurred on one day. It is Mr. Johnson's position that a fence cannot be erected in compliance with the Fence By-Law and, at a later date, be modified, for example, to add height that exceeds that set out in the Fence By-Law. The By-law is meant to cover any modifications or ongoing erection made to the fence, whether the height is adjusted upwards or downwards. Any other interpretation of the Fence By-law would render it ineffective. Mr. Moak disagrees and states that only the original building of the fence is captured in the Fence By-Law, but subsequent increase in height is not "erecting" and is not captured. He indicates that this is because the way the by-law is written is vague.

IV. ANALYSIS AND FINDINGS

[55] The preamble to the Corporation of the Township of South Stormont By-law No. 2006-69 describes it as "a by-law to regulate the erection, height and maintenance of fences".

(a) Definitions

[56] The following "Definitions" under Article 1.0 of the By-law are relevant to this analysis:

1.3 "Fence" shall mean any barrier or structure other than a building, erected at grade on privately owned property, erected for the purpose of screening, safeguarding, enclosing property or delineating property lines, but does not include:

(a) an enclosure as regulated by the Township's by-law to regulate fences and gates around privately owned outdoor swimming pools;

(b) a fence to contain a vicious dog as regulated in the Township's current "Dog Licencing and Control By-law, as amended from time to time";

(c) noise attenuation barriers designed to reduce noise levels from adjacent activities;

(d) temporary boarding and fencing erected around temporary construction sites; and

(e) hedges.

1.5 "Front Wall" shall mean that wall of the building customarily referred to as the front of the building closest to the front or exterior lot line. Where such wall has irregular projections therein, the front wall shall mean the most projecting portion of the wall.

1.8 "Grade" shall mean the elevation of the finished ground or surface adjoining the fence.

1.14 "Main Building" shall mean the building on a lot in which the principle use permitted on that lot is conducted.

1.19 "Residential Property" shall mean a property that is being used or intended to be used for residential purposes.

1.21 "Urban Area" shall mean those areas of the Municipality described as:

(a) "Settlement Area" on Schedules "A4a", "A4b", "A4c", "A4d" and "A4e" to the Municipality's current Official Plan; and/or

(b) all multi-unit residential developments within the Municipality, that are serviced by piped sewer and/or water.

[57] There is no dispute that the structure on the Blackburn property adjacent to the Renaud property is a "Fence", as defined by the Fence By-Law. For clarity, I do not accept that it is a clothes line, as initially claimed by Ian Blackburn when Officer Bissonnette made his second visit to that property on September 5, 2017. Nor are the Blackburns continuing to make such a preposterous claim. The structure meets the definition of a fence as provided in section 1.3 of the Fence By-Law.

[58] The property slopes downward from the road towards the water. Since the impugned fence was originally erected, the Blackburns have levelled the property and "Grade", as defined in section 1.8 of the Fence By-Law, is measured from the top of the stones or fill used for this purpose.

[59] The "Main Building" on the Blackburns' property, pursuant to section 1.14, is their house and the "Front Wall", under section 1.5 of the Fence By-Law, is on the southern side of the Blackburn house, that is, the wall that is closest to the front lot line and closest to the road. Although the front wall of the Renauds' house and the front wall of the Blackburns' house are set back different distances from the road, I am satisfied, that since the fence is on the Blackburns' property, the "Front Wall" refers to the front wall of the Blackburns' house.

[60] Both the Renaud property and the Blackburn property are used by the respective parties for residential purposes. Therefore, I am satisfied each property is a "Residential Property" as defined by section 1.19 of the Fence By-Law. Furthermore, Mr. Renaud testified that the properties are within an "Urban Area" and I have heard no evidence to the contrary. Therefore, I find that the Renaud property and the Blackburn property satisfy the Fence By-Law definition of "Urban Area" under section 1.21.

(b) Erecting a Fence and Taking Measurements

[61] All fences within the Township of South Stormont must be constructed in compliance with By-law No. 2006-69:

2.1 No person shall erect or cause to be erected a fence on a property within the limits of the Municipality save and except in compliance with the provisions of this by-law.

[62] I am satisfied that the Renaud property and the Blackburn property are located within the limits of the Municipality. As such, all fences erected or caused to be erected on their properties must comply with the provisions of this Fence By-Law.

[63] Sections 2.16 and 2.17 are helpful in arriving at how the height of the fence is to be measured:

a. Except as otherwise provided in this by-law, the height of a fence shall be measured from grade to the top of the fence. In the event of a difference in grade between two sides of the fence, the height of the fence shall be measured from the higher grade to the top of the fence.

b. Except as otherwise provided in this by-law, where the topography of the land changes over the length of a fence, the maximum allowable height of the fence shall be the average height measured from grade to the top of the fence over the length of the fence.

[64] The grade is higher on the Blackburn side of the fence than on the Renaud side. I am satisfied that Officer Bissonnette measured the height of the fence from the Blackburn side. And further, his measurements accounted for proper measuring from grade. Hence, I accept and rely upon his measurements. Mr. Renaud's measurements were taken from his side of the fence and, hence, in accordance with section 2.16 of the Fence By-Law, I cannot rely on these measurements in determining the height of the fence.

[65] Moreover, the properties slope downwards from south to north. Although the Blackburns levelled their property, Officer Bissonnette took measurements of at least three points along the fence. The average of these measurements determines the height of the fence, as provided for in section 2.17.

(c) Is the Blackburns' Fence Either a Legally Non-conforming Fence Replacing a Hedge Under Section 9.2 of the Fence By-Law or Existing as an Exemption to the Fence By-Law by Resolution of Council Under Section 9.3?

[66] For the fence at issue to be compliant with the Fence By-Law, sections 3.1 and 3.2 set out the height limitations. Nonetheless, "General Provisions" under Article 9.0 of the Fence By-Law provide for legally non-conforming fences and exemptions to the by-law. Sections 9.2 and 9.3 provide:

9.2 Nothing in this by-law shall prevent strengthening, repairing or replacing of an existing fence that does not comply with the provisions of this by-law or the replacement of a hedge with a non-conforming fence, provided the following provisions be met:

(a) the fence or hedge legally existed on the date of the passing of this by-law;

(b) the height of the new fence shall not exceed the height of the fence or hedge that is (sic) replacing; and,

(c) the new fence is not a "Restricted Fence" as described in Section 5.0 of this by-law.

9.3 The Council of the Corporation of the Township of South Stormont may, by resolution, allow an exemption to this by-law.

[67] For the reasons that follow, I am not satisfied that either section 9.2 or section 9.3 of the Fence By-Law apply to the Blackburns' fence.

i. Non-conforming Fence Pursuant to Section 9.2 of the Fence By-Law

[68] The Blackburns claim that their fence is replacing the hedge that existed between the Blackburn property and the Renaud property. Section 9.2 of the Fence By-Law provides for "the replacement of a hedge with a non-conforming fence, provided" three provisions are met. Firstly, the hedge had to legally exist on September 13, 2006, the date the Fence By-Law was passed. Mr. Renaud claims that the hedge belonged to him and he paid the full cost to have it removed. In October 2015, well after the date of the passing of the Fence By-Law, the Renauds had the northern part of the hedge removed, that is, the part of the hedge separating the back yards. There is no dispute by the parties and I am satisfied the hedge separating the backyards of the two properties existed on September 13, 2006, the date the Fence By-Law was passed. Furthermore, the part of the hedge separating the southern or front parts of the properties remained and it was not until April 2018 that this portion of the hedge was removed by the Renauds. Photographs of the fence on September 5, 2017, on September 7, 2017 and September 22, 2017 clearly illustrate that part of the fence co-existed along side the hedge. A photograph from May 2, 2018, taken by Officer Bissonnette, shows the stumps where the rest of the hedge was removed. Secondly, it is clear from the photographs showing the hedge behind the fence, that the fence erected in September 2017 did not exceed the height of the hedge the Blackburns claim their fence is replacing. Thirdly, I am satisfied that the impugned fence is not a "Restricted Fence".

[69] For several reasons, I cannot accept that the Blackburns built their fence to replace a hedge. Firstly, and most importantly, over a significant distance, the fence and the hedge co-existed from September 5, 2017 until April 2018. I accept that the Blackburns claimed no responsibility for the hedge and the Renauds claim it was their hedge and paid the costs incurred for removing it. I heard of no discussions or negotiations between the Blackburns and the Renauds, prior to the fence being built and through to April 2018, about taking the hedge down the full length of the fence. The Renauds did not remove the hedge so that the fence could replace it and the Blackburns absented themselves from any involvement in the state of the hedge. Given the plain language meaning of "replacement", I am not satisfied the Blackburn fence was replacing the hedge that existed on September 5, 2017. For the fence to be a "replacement", something had to be removed in order for something to take its place and this is not what occurred. For all these reasons, it is not logical and I do not accept that the Blackburns built the fence in accordance with section 9.2 of the Fence By-Law, that is, in the place of or as a replacement of a pre-existing hedge. Consequently, any fence erected or caused to be erected by the Blackburns cannot be a non-conforming fence under section 9.2.

ii. Exemption to Fence By-Law by Resolution of Council Under Section 9.3

[70] The Blackburns could be exempt from the height provisions found in sections 3.1 and 3.2 of the Fence By-Law if the Council of the Corporation of the Township of South Stormont had passed a resolution to that effect. Ms. Harbers indicated that the Council was in a closed session when it passed its "Directive" on August 15, 2018. However, the August 14, 2018 email that is referenced and instructs Township Solicitor Horner to proceed with the recommended resolution pertaining to the fence is a privileged document and will not be disclosed. The Council's "Directive" was passed in a closed session of Council and provides directions to have something done, but it is not a "resolution". Ms. Harbers was very explicit in differentiating a "directive" from a "resolution", the latter capable of being passed only in sessions of Council that are open to the public. As the City Clerk, she had attended every open session of Council since September 2017 and there has been no resolution passed with respect to the Blackburns' fence, as is required in order to take advantage of section 9.3 of the Fence By-Law. For these reasons, I find that section 9.3 of the Fence By-Law, wherein Council may allow an exemption to the Fence By-Law, has not been satisfied.

[71] Consequently, since neither section 9.2 nor section 9.3 apply to allow the Blackburns' fence to exist as either a non-conforming fence or as an exemption to the Fence By-Law, sections 3.1 and 3.2 that reference height limitations for residential fences apply to the Blackburns' fence.

(d) Does the Height of the Fence Comply with the Height Requirements Under Section 3.1 and Section 3.2 of the Fence By-Law?

[72] Article 3.0 specifically addresses "Residential Property". As stated above, both the Renaud property and the Blackburn property are residential properties and both are within the Urban Area. Sections 3.1 and 3.2 read:

3.1 No person shall erect or cause to be erected a solid fence that is more than 1.5 metres approximately (5 ft.) in height. A fence constructed of lattice, louvers or other open type construction may be erected up to 2.0 metres approximately (6.5 ft.) in height if it is located back of the front wall of the main building.

3.2 No person shall erect or cause to be erected any fence between the front wall of the main building and the front or exterior lot line that exceeds 1.0 metre approximately (39 in.) in height. This section applies only to those residential properties which are situated within the Urban Area.

[73] These are the two sections of the Fence By-Law pursuant to which the six counts against Ian Blackburn and Hilary Blackburn have been laid. Applying the facts in this proceeding to these provisions I find the following:

i. Erect or Cause to be Erected

[74] It is the defence agent's position that no new fence was erected between June 18, 2018 and December 18, 2018. September 5, 2017 was the only point in time the Blackburns erected or caused to be erected the impugned fence and, hence, the charges should be dismissed, as "erect or cause to be erected" is an essential element of the offences.

[75] It is the prosecutor's position that no new fence was built, but that the Blackburns began to "erect or cause to be erected" their fence on September 5, 2017. Over time, there was work done to the fence, such as height adjustments and adding lattice, etc. and, hence, it was in a constant state of being erected or causing to be erected.

[76] If I accept the defence's argument, then anyone could erect a fence on residential property that complied with the highest measurements allowed under the Fence By-Law. Only the original construction would satisfy "erect or cause to be erected" and any adjustments to height at a later date would not constitute a fence being "erect[ed] or cause[d] to be erected". Of course, if someone later undertook further construction to lower the height of their fence, there would be no issue as the height of the fence would continue to comply within the parameters set out in the Fence By-Law. Continuing to use the defence agent's logic, someone could get around the by-law requirements by later undertaking further construction to add height to their fence and they would be immune from prosecution under the Fence By-Law, as the later work would not constitute "erect or cause to be erected". The Municipality would be powerless to prosecute individuals who had fences that far exceeded the height limitations set out in the Fence By-Law. In essence, interpreting "erect or cause to be erected" in this fashion would sterilize the Fence By-Law. I am satisfied this was not what Council intended when the Fence By-Law was passed using the words "erect or cause to be erected". I am satisfied that anyone who builds or causes a fence to be built must ensure the fence complies with the Fence By-Law when first erected and at all times thereafter. I am satisfied that anyone who adds height to a fence is 'erecting or causing to be erected' a higher fence and any alteration or construction to the height of a fence continues to be captured by the Fence By-Law wording "erect or cause to be erected". This same rationale applies when someone lowers the height of a fence as was the case before me.

[77] For these reasons, I am satisfied that, in one form or another, the Blackburns' fence was erected or caused to be erected throughout the time period starting on or about September 5, 2017 and at all times thereafter, for example, when further work to the fence was undertaken, and including until these charges were brought against them on December 18, 2018.

ii. Two Different Time Periods

[78] In response to the defendants' concerns that the same three charges have been duplicated for two different time periods, that is, (1) June 18, 2018 to September 18, 2018 and (2) September 19, 2018 to December 18, 2018, I rely on the Ontario Court of Appeal decision, R. v. Reeves, [2000] O.J. No. 3538. In that case, the municipality claimed that nine of the Reeves' camping lots violated the zoning by-law, as they were too close to neighbouring cottages. The defendants argued that the lots were a legal non-conforming use. Charges were laid six times, the last time with the Reeves applying unsuccessfully to have the charges stayed on the grounds that they were an abuse of process. In paragraph 22, Laskin J.A., for the Court, writes:

These defendants were charged not with a Criminal Code offence, but with regulatory offences, with violating the municipality's land use requirements. The offences are not alleged to have occurred at a discrete point in time but to be ongoing violations. The practical effect of a stay would be to give the defendants a legal non-conforming use by court order without the merits of their position ever having been adjudicated. Viewed in this way, it seems to me the community's tolerance for successive prosecutions is greater that it might be in other kinds of cases. At least for now, the community's interest in enforcing its land use requirements outweighs any unfairness in prosecuting the defendants again.

[79] As in Reeves, supra, the alleged offences before this Court have not occurred at a discrete point in time, but are of an ongoing nature. Furthermore, the Blackburns altered their fence on or about September 18, 2018, causing it to be erected differently than before that date. Hence, I am satisfied that the same charges may be laid for these two different time periods.

iii. Findings for Counts 1 through 6

Count 1

[80] Ian Blackburn and Hilary Blackburn are charged that, between June 18, 2018 and September 19, 2018, they erected or caused to be erected a solid fence that is more than 1.5 meters in height on residential property, contrary to section 3.1 of South Stormont By-law 2006-69.

[81] On April 30, 2018, Officer Bissonnette measured the Blackburn's fence adjacent to the Renaud property. The Blackburns had their carpenter adjust the height of the fence by a few inches. No further work was done to the fence prior to September 18, 2018. The following measurements have not been disputed:

• South end of fence was 2.06 metres from grade
• North end of fence was 1.975 metres from grade
• Centre of fence was 1.97 metres, plus 0.055 metres above grade = 2.025 metres from grade
• Exterior of gate housing was 2.28 metres from grade. The gate housing is taller than that above the gate, but was not measured.

[82] The fence was solid, without lattice, louvers or other open type construction. Compliance with section 3.1 requires the fence to be no more than 1.5 metres, which is approximately 5 feet in height. The difference between the allowable height of 1.5 metres and 2 metres is more than de minimus, with the gate and its housing being even higher than the rest of the fence. These measurements clearly show a fence that is not compliant with this section.

[83] Therefore, I am satisfied that all the elements of count 1 have been proven beyond a reasonable doubt and I find Ian Blackburn and Hilary Blackburn erected or caused to be erected a solid fence that, between June 18, 2018 and September 18, 2018, did not comply with section 3.1 of the Fence By-Law.

Count 2

[84] Ian Blackburn and Hilary Blackburn are charged that between September 19, 2018 and December 18, 2018, they erected or caused to be erected a solid fence that is more than 1.5 meters in height on residential property, contrary to section 3.1 of South Stormont By-law 2006-69.

[85] On or about September 18, 2018, the Blackburns had their carpenter alter the fence. He removed a foot and a half from the top of the fence and replaced it with lattice on the portion of the fence behind the front wall of the house. There has been no further work to the fence.

[86] On October 18, 2018, Officer Bissonnette measured the impugned fence. The following measurements are not in dispute:

• The part closest to the road was 62 ¾ inches from raised stone, which was 3 ½ inches from grade
• The middle of the fence was 64 ½ inches from the raised stone, which was 1 7/8 inches from grade
• Moving north to just before the lattice topper, the fence measured 65 5/8 inches from the raised stone, which was approximately ¼ inch from grade.
• The top of the outside gatepost was 78 9/16 inches from grade
• The centre of the gate was 81 3/8 inches from grade
• The top of the inside gatepost was 78 5/8 inches from grade.

[87] I am satisfied that the height of the portion of the fence topped with lattice complies with section 3.1 of the Fence By-Law, which allows a fence constructed with lattice to be up to two metres (approximately six and a half feet or seventy-eight inches) in height back of the front wall of the main building or house. And, further, the amount above the allowable height of the outside gatepost is de minimus. However, the structure of the gate is solid and the centre of the gate portion of the fence exceeds the allowable height of 1.5 metres or approximately five feet or sixty inches, which is more than any fraction of an inch that I could consider to be de minimus. Moreover, the portion of the fence from the front wall of the Blackburns' house to their front lot line is solid and pursuant to section 3.1 of the Fence By-Law, it, too, cannot exceed 1.5 metres or approximately five feet or sixty inches in height. Officer Bissonnette's measurements illustrate that, from grade, this solid front portion of the fence measures 66 ¼ inches, 66 3/8 inches and 65 7/8 inches, averaging well over the sixty-inch height limitation. More will be said about the portion of the fence between the front wall of the house and the front lot line in count 6 below.

[88] Given the excessive height of the gate and the portion of the fence between the front wall of the house and the front lot line, I am satisfied that all the elements of count 2 have been proven beyond a reasonable doubt. I find that Ian Blackburn and Hilary Blackburn erected or caused to be erected a fence that, between September 19, 2018 and December 18, 2018, did not comply with section 3.1 of the Fence By-Law.

Count 3

[89] Ian Blackburn and Hilary Blackburn are charged that, between June 18, 2018 and September 18, 2018, they erected or caused to be erected a fence of open type construction over two meters in height back of the front wall of the main building on residential property, contrary to section 3.1 of South Stormont By-law 2006-69

[90] I am not satisfied that a fence with any "open type" construction existed prior to September 18, 2018. Therefore, I am dismissing this charge against the Blackburns.

Count 4

[91] Ian Blackburn and Hilary Blackburn are charged that, between September 19, 2018 and December 18, 2018, they erected or caused to be erected a fence of open type construction over two meters in height back of the front wall of the main building on residential property, contrary to section 3.1 of South Stormont By-law 2006-69.

[92] This charge focusses on the open-type construction portion of the fence that is back of the front wall of the Blackburns' house. As mentioned in count 2 above, the Blackburns had further work done to their fence on or about September 18, 2018 and Officer Bissonnette measured the fence again on October 18, 2018. As per count 2, I find that the height of the portion of the fence topped with lattice complies with section 3.1 of the Fence By-Law, which allows a fence constructed with lattice to be up to two metres (approximately six and a half feet or seventy-eight inches) in height back of the front wall of the main building or house. And, further, the amount above the allowable height of the outside gatepost is de minimus. Although the centre of the gate portion of the fence exceeds the allowable height by almost three inches, which is more than de minimus, the gate is not open-type construction, which is what this alleged offence aims to address.

[93] I have already found that, between September 19, 2018 and December 18, 2018, the Blackburns' gate, which is back of the front wall of their house, contravenes section 3.1 of the Fence By-law (see Count 2, above). So as not to be duplicative and, furthermore, since the open-type construction portion of the fence back of the front wall of the house complies with the allowable two-metre height restrictions, I am dismissing this count against Ian Blackburn and Hilary Blackburn.

Count 5

[94] Ian Blackburn and Hilary Blackburn are charged that between June 18, 2018 and September 18, 2018, they erected or caused to be erected a fence in an urban area, over one metre in height between the front wall of the main building and the front lot line, contrary to section 3.2 of South Stormont By-law 2006-69.

[95] Applying the measurements taken by Officer Bissonnette on April 30, 2018, I find that the portion of the Blackburns' fence between the front wall of the house and the front lot line was approximately two metres in height, far exceeding the one metre limit set by section 3.2 of the Fence By-Law.

[96] Therefore, I am satisfied that all the elements of count 5 have been proven beyond a reasonable doubt. I find that, between June 18, 2018 and September 18, 2018, Ian Blackburn and Hilary Blackburn erected or caused to be erected a fence that did not comply with section 3.2 of the Fence By-Law.

Count 6

[97] Ian Blackburn and Hilary Blackburn are charged that, between September 18, 2018 and December 18, 2018, they erected or caused to be erected a fence in an urban area over one meter in height between the front wall of the main building and the front lot line, contrary to section 3.2 of South Stormont By-law 2006-69

[98] On October 18, 2018, after adjustments were made to the fence on or about September 18, 2018, Officer Bissonnette measured the fence between the front wall of the house and the front lot line at three different points. He provided the following three measurements: (1) the part closest to the road was 62 ¾ inches from raised stone, which was 3 ½ inches from grade, for a total of 66 ¼ inches; (2) the middle of the fence was 64 ½ inches from the raised stone, which was 1 7/8 inches from grade, for a total of 66 3/8 inches from grade; and (3) moving north to just before the lattice topper, the fence measured 65 5/8 inches from the raised stone, which was approximately ¼ inch from grade, for a total of 65 7/8 inches from grade.

[99] Section 3.2 of the Fence By-Law allows this part of the fence to reach a maximum height of one metre or approximately thirty-nine inches. The front portion of the Blackburns' fence far exceeds this limitation and, hence, does not conform with this Fence By-Law requirement.

[100] Therefore, all the elements of count 6 have been proven beyond a reasonable doubt. I am more than satisfied that, between September 18, 2018 and December 18, 2018, Ian Blackburn and Hilary Blackburn erected or caused to be erected a fence between the front wall of their house and the front lot line that did not comply with section 3.2 of the Fence By-Law.

(e) Have the Blackburns Satisfied the Defence of Officially-Induced Error or a Due Diligence Defence?

[101] By September 29, 2018, it is clear from Mr. Horner's email, the Blackburns were not making any allegations of officially-induced error. Nonetheless, they now come before me claiming the defence of officially-induced error. In the event this defence is not successful, they claim that the offences are strict liability offences and they exercised sufficient due diligence such that all the charges should be dismissed.

i. Officially-Induced Error

[102] The Blackburns claim that the Township advised them that it would not prosecute them further after their pleas of guilty on November 20, 2018 for non-compliance with the "Good Neighbour Fence" provision under section 2.14 of the Fence By-Law. To that date, the Township had spent as much time, resources and money as it was willing to spend. There had been ongoing discussions for over a year and the Blackburns had retained the services of a lawyer, Mr. Gatien, who negotiated a resolution on their behalf.

[103] It is the prosecution's position that the defence of officially-induced error does not exist in this case, as neither the defendants nor their legal counsel, Mr. Gatien, addressed the issue of Mr. Renaud's rights to bring a private prosecution against the Blackburns. As well, the Municipality never indicated that the Blackburns' fence complied with the Fence By-Law.

[104] The defence of officially-induced error should address why the defendants did not comply with the law, that is, why their fence did not comply with the height restrictions contained in the Fence By-Law. This concept appears to have been conflated together with whether there can be a further prosecution against them. I will touch on both issues as I address the defence of officially-induced error.

[105] The defence of officially-induced error in law is explained at paragraph 22 of Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec Inc., 2006 SCC 12, [2006] 1 S.C.R. 420, where LeBel J. reaffirms this defence on behalf of the Supreme Court of Canada:

This Court has firmly and consistently applied the principle that ignorance of the law is no defence. It has given effect to this principle not only in the context of the criminal law itself, but also in cases involving regulatory offences (Molis v. The Queen, [1980] 2 S.C.R. 356; Pontes, [1995] 3 S.C.R. 44). However, the inflexibility of this rule is cause for concern where the error in law of the accused arises out of an error of an authorized representative of the state and the state then demands, through other officials, that the criminal law be applied strictly to punish the conduct of the accused. In such a case, regardless of whether it involves strict liability or absolute liability offences, the fundamental fairness of the criminal process would appear to be compromised. Although the Court has not ruled on this point, Lamer C.J. responded to these concerns, in concurring reasons in Jorgensen (R. v. Jorgensen, [1995] 4 S.C.R. 55) by proposing to recognize the defence of officially induced error and attempting to define the conditions under which the defence would be allowed.

[106] In his minority opinion in R. v. Jorgensen, [1995] 4 S.C.R. 55, at paragraphs 25 and 26, then Chief Justice Lamer explains:

Officially induced error of law exists as an exception to the rule that ignorance of the law does not excuse. As several of the cases where this rule has been discussed note, the complexity of contemporary regulation makes the assumption that a responsible citizen will have a comprehensive knowledge of the law unreasonable. This complexity, however, does not justify rejecting a rule which encourages a responsible citizenry, encourages government to publicize enactments, and is an essential foundation to the rule of law. Rather, extensive regulation is one motive for creating a limited exception to the rule that ignorantia juris neminem excusat.

As complexity of regulation is linked to the justification for this excuse, it is predictable that it will arise most often in the realm of regulatory offences. ...

[107] Starting at paragraph 28 of Jorgensen, supra, Lamer C.J. established six elements or steps the defendant must prove in order to establish the defence of officially induced error of law. They are as follows:

1. First, determine that the error was one of law or of mixed law and fact.

2. Demonstrate that the accused considered the legal consequences of his/her actions.

3. It must be demonstrated that the advice obtained came from an appropriate official.

4. The defendant must show that the advice was reasonable in the circumstances.

5. The advice obtained must also have been erroneous. [The Crown will have established what the correct law is, from which the existence of error can be deduced.]

6. Finally, the accused must demonstrate reliance on the official advice.

[108] Lamer C.J. adds the following procedural considerations, at paragraphs 37:

As this excuse does not affect a determination of culpability, it is procedurally similar to entrapment. Both function as excuses rather than justifications in that they concede the wrongfulness of the action but assert that under the circumstances it should not be attributed to the actor. (See R. v. Mack, [1988] 2 S.C.R. 903, at pp. 944-45.) As in the case of entrapment, the accused has done nothing to entitle him to an acquittal, but the state has done something which disentitles it to a conviction (Mack, at p. 975). Like entrapment, the successful application of an officially induced error of law argument will lead to a judicial stay of proceedings rather than an acquittal. Consequently, as a stay can only be entered in the clearest of cases, an officially induced error of law argument will only be successful in the clearest of cases.

... The elements of the officially induced error excuse are to be proven on a balance of probabilities by the accused.

[109] I find that the defendants have not proven all the elements of officially-induced error on a balance of probabilities. Addressing each of the requisite six elements or steps identified by Lamer C.J. in Jorgensen, supra, the reasons for my finding are as follows.

[110] Firstly, any error regarding the height of the Blackburns' fence not complying with the Fence By-Law would be one of mixed law and fact. However, I can find no error in law or in mixed law and fact regarding the Municipality advising a party that it did not intend to proceed with further prosecutions. Nonetheless, if I am in error on this latter issue, I will continue with my analysis below.

[111] Secondly, the Blackburns must demonstrate that they considered the legal consequences of their actions. I am not satisfied that this was the case. The Blackburns were advised on many occasions that their fence did not comply with the Fence By-Law and action was required by them to bring it into compliance. And as stated by Lamer, C.J., in Jorgensen, supra, "It is insufficient for an accused who wishes to benefit from this excuse to simply assume that her conduct is permissible." The following are several examples of instances that speak to this second element of the defendants' officially-induced error defence:

• On September 7, 2017, Officer Bissonnette served the Blackburns with a formal written notice to either remove their fence or bring it into compliance with the Fence By-Law, failing which, the Township would be taking enforcement action as provided under the by-law.

• Further work was done to lop off a significant portion of the fence. Ms. Blackburn testified that in October 2017, she received a registered letter advising her that the fence still did not comply.

• Work was done to the fence and on November 8, 2017, Ms. Blackburn advised Ms. Harbers that the fence was almost finished and measured 66 inches from grade. Officer Bissonnette measured it again on November 8, 2017, to find it still did not comply. Ms. Harbers sent the Blackburns two registered letters informing them, again, that the fence did not comply with the Fence By-Law. The November 28, 2017 letter clearly stated that "any arrangement made by staff cannot prevent Council from enforcing any by-law in the future."

• On January 5, 2018, Ms. Blackburn and her daughter spoke to Mayor Jim Bancroft who advised them that he did not know what the path forward would be. No reasons were given in evidence as to why it was the Blackburns' understanding that there would be no prosecution.

• On February 20, 2018, Ms. Harbers sent the Blackburns another letter informing them that at the February 13, 2018 Council Meeting, Council directed staff to serve notice that the Township required compliance with the Fence By-Law, inter alia, completely remove the fence or the fence was to meet the one-metre requirement under section 3.2 and be constructed as a "Good Neighbour Fence". If compliance was not attained by April 16, 2018, charges would be brought. Ms. Blackburn testified that even the strictest interpretation of the by-law did not require them to reduce the height of the whole fence. I am satisfied that Ms. Blackburn was clearly aware of the legal requirements imposed upon them in the erection of their fence.

• In March 2018, when Ms. Blackburn contacted the Ontario Ombudsman, she advised that she had read the Fence By-Law and understood her fence could be one and a half metres high with a foot and a half of lattice on top. In other words, she was well aware of the legal requirements and from this, it is a reasonable inference that she was aware of the provisions of the Fence By-Law that included enforcement and penalties.

• In March 2018, the Blackburns retained the services of legal counsel, Mr. Gatien, who conversed with the Township on their behalf. Hence, I am satisfied they were aware of potential legal consequences, depending on their actions regarding their fence.

• On April 30, 2018, Officer Bissonnette again measured the fence. It remained non-compliant with the Fence By-Law provisions. In May 2018, the Blackburns had their carpenter remove a couple of inches of the fence that had been brought to their attention. The fence still did not comply with the Fence By-Law and, consequently, on May 23, 2018, the Township laid charges against the Blackburns for offences under sections 3.1, 3.2, 2.14 and 6.2 of the by-law.

• On August 15, 2018, the Township Council passed a "directive" directing the Township solicitor to "proceed with the recommended resolution pertaining to the Blackburn fence issue in the email dated August 14, 2018." At no time did the Council pass a "resolution" to allow any exemption to the Fence By-law, as is required under section 9.3.

• In the September 2018 negotiations between the Township and Mr. Gatien, it is clear from the wording of the Acknowledgement that the Township was not willing to accept the Blackburns' fence "to not be non-conforming", but instead indicated it would take no other enforcement proceedings under the Fence By-Law. Mr. Horner was explicit in explaining that the Township was reluctant to make a definitive statement about 'conforming'. At no time did Mr. Gatien canvass the issue of whether Mr. Renaud had the right to bring a private prosecution. He informed his clients, the Blackburns, about what they needed to do so that the Township would accept the fence.

• On September 18, 2018, the Blackburns had their carpenter remove some of the height from the fence and replace it with lattice on the portion of the fence back of the front wall of the house. Since then, there has been no further adjustments made to the height of the fence.

• On September 29, 2018, Mr. Horner sent a very clear message by email to Mr. Renaud and cc'ed Mr. Gatien. He stated "No agreement exists anywhere to the best of my knowledge and belief that indicates the fence, as it is to be modified complies with the by-law. It might if s.9 applies. It might still be in contravention. The Twp takes no formal position on what it seems will require judicial adjudication." He also did not mince words when he wrote "No contract was entered into, no assurances were given. I want to be clear here that the Blackburns have not made any allegations of "officially induced error" or the like."

• On November 20, 2018, Ian Blackburn and Hilary Blackburn each pled guilty to one count contrary to section 2.14 of the Fence By-Law ("Good Neighbour Fences" clause). The remaining charges were withdrawn. The Municipal Prosecutor was not dealing with the height of the fence and took no position on the applicability of sections 9.2 (replacing a hedge with a fence) or 9.3 (exemption to by-law by resolution of Council).

[112] These events, including the numerous notices and letters from the Township advising them what needed to be done, unmistakeably illustrate that the Blackburns were aware of the legal consequences of their actions with respect to non-compliance with the Fence By-Law.

[113] And regarding their guilty pleas on November 20, 2018, the Municipal Prosecutor was clear that the height of the fence was not an issue for the prosecution and the municipality was not taking a position on the applicability of section 9.2 or section 9.3. Mr. Horner was clear that the municipality had spent extraordinary financial resources and was exercising prosecutorial discretion in not prosecuting further. In his September 29, 2018 email, cc'ed to Mr. Gatien, Mr. Horner unambiguously advised that the Township "takes no formal position on what it seems will require judicial adjudication." Nevertheless, the Blackburns subsequently decided to proceed with their pleas of guilty to the "Good Neighbour Fences" provision of the by-law on November 20, 2018.

[114] Thirdly, the Blackburns must demonstrate that the advice came from an appropriate official. There is no doubt that, at various times, Mr. Horner as the solicitor for the Township, Ms. Harbers as the Township Clerk, and Officer Bissonnette as the Township By-law Officer, advised the Blackburns about various aspects relating to their fence. I am satisfied all three individuals are appropriate officials of the Township. Mr. Gatien, as legal counsel to the defendants, is not an appropriate Township official.

[115] Fourthly, the Blackburns must demonstrate that the advice the Township provided to the Blackburns, and upon which they relied, was reasonable in the circumstances. None of the Township officials advised the Blackburns that their fence complied with the Fence By-Law. Furthermore, the Township has not reneged when they told the Blackburns that if they plead guilty to section 2.14 of the Fence By-Law, the rest of the charges brought by the Township against them would be withdrawn and the Township would not bring a further prosecution against them. Given the history of events over a protracted period of time, the Township had decided that it did not wish to spend any further resources on this issue.

[116] In addressing the fifth element of the defence of officially-induced error, I must determine that the advice the Township gave to the Blackburns was erroneous. I do not find this to be the case. The Township took no formal position on what might require further judicial adjudication. It advised the Blackburns that it would not prosecute further and it has not brought further prosecutions against the Blackburns. Whether any other party could or could not be bringing further prosecutions against them is a topic not fully explored by the defendants' legal counsel and it is not erroneous advice from an appropriate Township official, as is required to prove this defence. In fact, Mr. Renaud brought this prosecution privately against the Blackburns as was his right under section 23 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended. Furthermore, at no time did the Township erroneously advise the Blackburns that their fence was in compliance with the Fence By-Law. In fact, the prosecution has shown that, time after time after time, the Township notified them that the fence did not comply and deadlines were set for the Blackburns to bring it into compliance, but these deadlines were not met. Additionally, Mr. Horner refused to provide an Acknowledgement to the Blackburns that would have accepted the fence "to not be non-conforming with the provisions of By-law 2006-69", but instead advised the defendants that the Township "will take no other enforcement proceedings under By-law 2006-69 with respect to the modified Fence".

[117] As well, at no time did the Township advise the Blackburns that section 9.2 or section 9.3 applied to their fence. In fact, the Township took no formal position on this and advised them that further judicial adjudication on section 9 could be required.

[118] Failure of the defence to prove that the Township provided the defendants with erroneous advice renders a finding with respect to the sixth and final element, in which the defendants must demonstrate reliance on erroneous official advice, unnecessary.

[119] In summary, the defendants have not shown that the Township erroneously advised them that it would not bring a further prosecution against them or that there could be no further prosecution or, further, that the Township erroneously advised them that their fence complied with the Fence By-Law. The defendants' failure to prove, on a balance of probabilities, that the Township's advice was erroneous, defeats this defence. No officially-induced error has been proven.

ii. Defence of Due Diligence

[120] The defence agent submits that the charges against the Blackburns are strict liability offences. I concur. The starting point in such an analysis is Mr. Justice Dickson's decision on behalf of the Supreme Court of Canada, in R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299, which sets out the three categories of offences. He writes,

I conclude, for the reasons which I have sought to express, that there are compelling grounds for the recognition of three categories of offences rather than the traditional two:

1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.

2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey's case.

3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.

Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as "wilfully," "with intent," "knowingly," or "intentionally" are contained in the statutory provision creating the offence. On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category.

[121] There is a presumption in favour of a public welfare or regulatory provision being a strict liability offence. [See e.g., R. v. Sault Ste. Marie, supra; R. v. Kando, 2008 ONCA 22, [2008] O.J. No. 80.] The Fence By-Law is a scheme aimed primarily at regulating and enforcing reasonable standards in our communities. The expression "Good fences make good neighbours" is most fitting in these proceedings.

[122] To analyse whether the offences before this Court fall into an absolute or strict liability category, I look to the fourfold test set out by Dickson, J. in Sault Ste. Marie, supra: (1) the overall regulatory pattern adopted by the Legislature, (2) the subject matter of the legislation, (3) the importance of the penalty, and (4) the precision of the language used.

[123] There is nothing in the overall regulatory pattern within the Fence By-Law that consistently speaks to these charges as absolute liability offences. The subject matter of sections 3.1 and 3.2 is clear – these sections define the height limitations for residential fences and nothing leads me to believe absolute liability offences were intended. The penalty for non-compliance with either of these sections of the Fence By-Law is $150 which was set in 2006 and which I do not find determinative of whether these sections are absolute or strict liability offences. Regarding the precision of the language used, LeBel J., writes for the Court in Lévis (City) v. Tetreault, 2006 SCC 12, [2006] 1 S.C.R. 420, a decision relating to whether ss 31.1 and 93.1 of the Highway Safety Code, R.S.Q., c. C-24.2, create absolute liability or strict liability offences. At paragraph 17, he states:

Absolute liability offences still exist, but they have become an exception requiring clear proof of legislative intent. This intent can be deduced from various factors, the most important of which would appear to be the wording of the statute itself.

[124] There is no clear language showing an unambiguous intention to create an absolute liability offence in the wording of either section 3.1 or section 3.2 of the Fence By-law. Nor is there wording, such as "willfully", "knowingly" or "intentionally" that would place these offences into a mens rea offence classification.

[125] This Fence By-Law can be classified as a public welfare or regulatory scheme and for all the above reasons, I adopt the presumptive position that section 3.1 and section 3.2 of the Fence By-Law are strict liability offences.

[126] Strict liability offences "assume that the defendant could have avoided committing the offence through the exercise of reasonable care.": R. v. Canadian Tire Corp., [2004] O.J. No. 3129. There are two branches to the defence of due diligence, only one of which the defence must satisfy. The defendant must prove he or she either (1) took all reasonable care to avoid committing the offence or (2) reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent: Sault Ste. Marie, supra.

[127] In the matter before me, I am not satisfied that the defendants exercised due diligence to ensure their fence complied with the Fence By-Law. When they first received notice of non-compliance, their actions were so absurd as to string a wire along the fence and hang large swaths of material on the wire, claiming the structure was a clothesline, not a fence. For well over a year, they repeatedly received notices from the Township advising them to comply with the by-law. Time after time, the Township provided them with sufficient latitude and spent a significant amount of resources attempting to resolve this issue, yet the Blackburns repeatedly failed to bring their fence into compliance with the Fence By-Law. Instead, they attempted to negotiate their way into an agreement with the Township that would allow them to leave their fence non-compliant. On more than one occasion, they assured the Township that they had undertaken what was asked of them, but on more than one occasion, this was not the case. They had work done to the fence in October and November 2017, in May 2018, in September 2018. Nonetheless, none of the alterations brought the height of their fence along its full length into compliance, even after they retained legal counsel. The height requirements in the Fence By-Law are clear and easy to follow. I can reasonably infer from their conduct over a relatively long period of time that the Blackburns steadfastly and unreasonably attempted to have their fence exist as they wished it to be erected, instead of in compliance with the provisions of the Fence By-Law. In these circumstances, they did not take all reasonable care to avoid committing the offence. For these reasons, I find that this branch of the defence of due diligence fails.

[128] There is no evidence that the second branch of the due diligence defence has been proven. There is no mistaken set of facts. The Township has been sufficiently clear and transparent in setting out their position regarding the Blackburns' fence and the Blackburns could not have reasonably believed otherwise. I do not accept that the wording of the Fence By-Law is ambiguous and, further, the height limitations are clear-cut and well-defined.

[129] For all these reasons, I find the Blackburns have failed in their defence of due diligence.

V. CONCLUSION

[130] I have found that the Blackburns' fence on Sunset Drive in Long Sault, Township of South Stormont, is not a non-conforming fence as provided under section 9.2 of the Fence By-Law and there has been no resolution passed by the Township Council that allows the fence to exist as an exemption to the Fence By-Law under section 9.3. Furthermore, I am satisfied that between June 18 and September 18, 2018 and, again, between September 19 and December 18, 2018, the height of various portions along the length of the Blackburns' fence did not fully comply with the height requirements in sections 3.1 and 3.2 of the Fence By-Law. Hence, for the reasons I have provided, I am satisfied that all the elements of counts 1, 2, 5 and 6 have been proven beyond a reasonable doubt. However, this is not the case with counts 3 and 4 and I am dismissing these two charges.

[131] In accordance with my reasons above, I have found that the Blackburns have not met their onus to prove, on a balance of probabilities, either of the defences of officially-induced error or due diligence.

[132] In conclusion, I find Ian Blackburn and Hilary Blackburn guilty of counts 1, 2, 5 and 6. Convictions will be registered.

Released: February 25, 2020

Signed: Justice of the Peace M. Coopersmith