ONTARIO COURT OF JUSTICE DATE: 2021 03 02 COURT FILE No.: Kenora 180039

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

LEONARD BOUCHA

Before Justice P. Joubert

Heard: October 2, 2020 Oral Reasons for Judgment: January 11, 2021; Written Reasons released: March 2, 2021

Counsel: P. Gonsalves..................................................................... counsel for the Crown/appellant D. Keshen................................................................ counsel for the defendant/respondent

JOUBERT J.:

1. Introduction

[1] The Crown appeals from the acquittal of the respondent at trial on a charge laid pursuant to subsection 13(2) of the Provincial Parks and Conservation Reserve Act, S.O. 2006, c. 12 (“PPCRA”). The acquittal was entered by Justice of the Peace Z.N. Kitchekeesik on December 18, 2019. The defendant seeks dismissal of the appeal and an order of costs against the appellant.

[2] The appeal was heard before me on October 2, 2020. On January 11, 2021, I indicated that the appeal and the request for costs are both denied and that written reasons would follow.

[3] What follows are my written reasons for decision. I set out the background to the case, the positions of the parties, and my decision in dismissing both the appeal and the request for costs.

2. Background

[4] The respondent is a non-status indigenous person. According to the evidence at trial, the respondent has lived on the Wauzhusk Onigum (“Rat Portage First Nation”) reserve since 2000. For generations, his ancestors have lived off the land in and around Wauzhusk Onigum by hunting, trapping, and harvesting wild rice. The majority of his siblings are members of the Métis Nation of Ontario.

[5] The case involves a cabin built by the respondent in 2014. The cabin was built on an unnamed island east of Skeet Island on Lake of the Woods, Kenora district. It is situated approximately thirty kilometers from Wauzhusk Onigum reserve. According to the evidence of the respondent at trial the cabin was built to facilitate his ability to exercise his Métis rights.

[6] The island on which the cabin was built is within Lake of the Woods Provincial Park. Section 13 of the PPCRA provides as follows:

Use and occupation of land

13 (1) Land in provincial parks and conservation reserves shall be used and occupied in accordance with this Act and the regulations.

Prohibition

(2) No person shall use or occupy land in a provincial park or conservation reserve except in accordance with this Act and the regulations.

(Emphasis mine.)

[7] I have highlighted the subsection pursuant to which the respondent was ultimately charged, subsection 13(2). The allegation is that the respondent, in building and using a permanent structure in a provincial park in a manner not in accordance with the Act and the regulations, committed the offence of unlawful use or occupation.

[8] According to the evidence of the Crown at trial, the Ministry of Natural Resources and Forestry (“MNRF”) was made aware of the existence of the cabin in 2014. Subsequently, on January 8, 2015, two conservation officers attended at the location and photographed the cabin. Believing that the cabin was within a conservation reserve and its use was unauthorized, they posted a notice on the cabin ordering its removal within thirty days.

[9] The respondent was not charged with an offence under subsection 13(2) until January 19, 2018.

[10] The charging information alleges as follows:

That, [the respondent] …

between the 17th day of January 2016 to the 17th day of January 2018 at an unnamed island in the area of Skeet Island on Lake of the Woods, District of Kenora, Northwest Region

did commit the offence of

Unlawfully use or occupy land in a provincial park (to wit – Lake of the Woods Provincial Park) not in accordance with this Act and regulations contrary to section 13(2) of the Provincial Parks and Conservation Reserves Act, 2006, S.O. 2006, c.12 as amended.

[11] One of the issues the defendant raised at trial was whether the charge was time-barred by operation of section 53 of the PPCRA. Section 53 provides as follows:

Limitation period

53 A prosecution for an offence under this Act or the regulations shall not be commenced more than two years after the day evidence of the offence first came to the attention of an officer.

(Emphasis mine.)

[12] It is this issue that lies at the heart of the present appeal.

[13] To allow for the issues to be fully and fairly understood, the following summary of the evidence at trial and the decision rendered is provided.

3. Evidence at Trial

[14] The parties agreed that the trial would proceed in a staged manner. The first stage would involve the issue of whether the charge was time-barred by operation of section 53, whether the prosecution could prove the essential elements of the offence, and whether the cabin satisfied the criteria established in R. v. Sundown, [1999] 1 S.C.R. 393 (“Sundown”). Had it been necessary, the second and third stages of the trial would have involved whether the respondent had constitutionally protected harvesting rights, and whether building a Sundown cabin fell within such rights.

[15] On June 26 and 27, 2019, the trial Court heard evidence and submissions on the stage one issues.

[16] According to the evidence, about two weeks after the notice was posted in January 2015 the respondent contacted the MNRF. He confirmed that the cabin belonged to him and expressed that the cabin had been constructed in accordance with his rights as a Métis person.

[17] According to the evidence, the MNRF made several attempts to follow up with the respondent to discuss his position and then decide if the cabin was defensible as a Sundown cabin. The requested information was not given, and on December 14, 2015, the matter was turned over to the enforcement branch of the MNRF.

[18] According to his testimony, the enforcement conservation officer was also unaware that the island was within a provincial park. He attended at the cabin on March 6, 2016. He attempted to engage with the respondent with little success. On December 22, 2016, he swore an Information alleging an offence under the Public Lands Act, R.S.O. 1990, c. P.43 (“PLA”) for unlawfully constructing or placing a building on public land without a work permit.

[19] The information laid pursuant to the PLA alleges as follows:

That, [the defendant] …

Between the 1st day of September 2014 to the 1st day of December 2014 at an unnamed island in the area of Skeet Island on Lake of the Woods, District of Kenora, Northwest Region

did commit the offence of

Unlawfully construct or place a building on public land without a work permit, contrary to paragraph 1 of subsection 2(1) of Ontario Regulation 239/13 made pursuant to the Public Lands Act, R.S.O. 1990, Chapter P.43, as amended.

[20] According to the evidence, in February 2017 information brought to the conservation officer’s attention by MNRF staff suggested that the island was located within Lake of the Woods Provincial Park. This was confirmed in early March 2017 through the MNRF’s land specialist.

[21] On April 4, 2017, the charge was withdrawn.

[22] The reason given was that the Public Lands Act does not apply to land within a provincial park by operation of section 56 of the PPCRA. According to the testimony, the charge was “not correct” because the land was “now a park.”

[23] Section 56 of the PPCRA reads as follows:

Public Lands Act

56 The Public Lands Act does not apply to provincial parks or conservation reserves.

(Emphasis mine.)

It may be observed that the provision applies to both provincial parks and conservation reserves. Under section 56, the Public Lands Act applies to neither.

[24] The charge before the trial Court was sworn on January 19, 2018.

4. Decision at Trial

[25] The trial Court reserved its decision on the stage one issues and adjourned the proceedings.

[26] Subsequently, on December 18, 2019, Justice of the Peace Kitchekeesik dismissed the charge, holding that it was barred by the operation of the limitation period set out in section 53 of the PPCRA.

[27] In the reasons for decision, the trial Court rejected the following two broad arguments advanced by the Crown the rejection to which forms the basis for the present appeal.

[28] The first argument was that the offence, of using or occupying land in a provincial park in a manner not in accordance with the PPCRA and its regulations, is a continuing offence, such that a separate and distinct offence occurs for each day that the use or occupation continues.

[29] The trial Court held that the issue was not relevant in the case before it. This was because section 53 mandates that the limitation period begins not when the offence occurs but when evidence of the offence first comes to the attention of a conservation officer. Reference is made to the following excerpts from the reasons for decision:

… [the] question is not when the offense occurred but when the officer had evidence of it. It does not matter whether the offence was continuing.

I find there is no need to make a determination as to whether the offence is a continuing offence. The limitation period in section 53 is triggered on the day when evidence of the offence first comes to the attention of the officer, not when the offence is committed. Whether an offence is a continuing one is irrelevant when the limitation period begins to run from the date of the alleged offence… I find it unnecessary to make a determination as to whether the offence is a continuing one ….

(Emphasis mine.)

[30] The second argument was that the phrase in section 53, “evidence of the offence first came to the attention of an officer,” requires evidence of each element of the offence before the limitation period begins to run. On that basis, the limitation period was submitted not to run until after the conservation officer realized that the island was in a provincial park.

[31] The Court disagreed. It held:

… the prosecution has argued that evidence of the offence refers to all elements of the offence. I do not agree….

In applying the law to the facts, the Court held as follows:

… I do find, however, that when the conservation officer saw and took pictures of the cabin on the island on January 8, 2015, that they had received evidence of the offence. This was significant to the limitation period. [It] was on this date – there was on this date evidence of the offence of use and occupation that came to the attention of an officer as defined under the Provincial Parks and Conservation Reserves Act.

(Emphasis mine.)

5. Issues on Appeal

[32] The central issue on appeal is whether the laying of the information on January 19, 2018, was out of time by operation of section 53 of the PPCRA. The Court is asked to consider whether the trial Court was wrong to reject the two arguments that I have referred to and what if any appellate relief should be granted. The Court must also decide the issue of costs raised by the respondent.

6. Position of the Appellant

6.1. Overview

[33] The appellant’s position is that the charge was within the prescribed time, and that the trial Court in concluding otherwise committed two errors. First, it failed to find that the offence of occupying land in a provincial park not in accordance with the statute and its regulations, under section 13(2) of the PPCRA, is a continuing offence. Second, it failed to find that the phrase in section 53, “evidence of the offence first coming to the attention of an officer,” refers to all essential elements of the offence. Both errors are submitted to be errors of law, to be reviewed on a correctness standard.

[34] The appellant asks that the appeal be allowed, that the acquittal be set aside, that a conviction be entered and a fine imposed, and that an order be made directing that the cabin and personal property of the respondent be removed from the island. Alternatively, the appellant requests a new trial. It also seeks dismissal of the request for costs by the respondent.

[35] The submissions advanced by the appellant in support are as follows.

6.2. Submissions on a Continuing Offence

[36] The first legal error alleged by the appellant is set out as follows at para. 26 of its factum:

i) The Justice of the Peace erred in law in failing to find that the offence before the court, using or occupying land in a provincial park not in accordance with the Provincial Parks and Conservation Reserves Act and its regulations contrary to s. 13(2) of the PPCRA, is a continuing offence.

The appellant submits that the failure of the trial Court to find a continuing offence led it to wrongly determine that the limitation period in section 53 of the PPCRA started when the occupation first came to the attention of a conservation officer. As it submits in the opening paragraph to its factum, “It is the Crown’s position that the date of discovery of the cabin is irrelevant as ‘occupying’ is a continuing offence.” (Emphasis mine.)

[37] The appellant submits that subsection 13(2) of the PPCRA creates an ongoing prohibition on using or occupying provincial park land except in accordance with the statute or its regulations. The prohibition applies beyond the date of a person’s initial use or occupation of park land such that, for each day that the use or occupation continues, so too does the offence.

[38] The appellant relies upon the definition of continuing offence approved in R. v. Rutherford, 1990 O.J. No. 136 (C.A.) (“Rutherford”) and, specifically, to the first of the two categories of continuing offences described. Grange J.A. for the majority held as follows at para 16:

16 It is perhaps not always easy to determine what is and what is not a continuing offence. A helpful definition is that of the Supreme Court of Victoria in R. v. Industrial Appeals Court, [1965] V.R. 615. There, O'Bryan and Gillard JJ. observed at p. 620:

A continuous or continuing offence is a concept well known in the criminal law and is often used to describe two different kinds of crime. There is the crime which is constituted by conduct which goes on from day to day and which constitutes a separate and distinct offence each day the conduct continues. There is, on the other hand, the kind of conduct, generally of a passive character, which consists in the failure to perform a duty imposed by law. Such passive conduct may constitute a crime when first indulged in but if the obligation is continuous the breach though constituting one crime only continues day by day to be a crime until the obligation is performed.

(Emphasis mine.)

[39] The appellant submits that the conduct of the respondent falls under the first category of continuing offence. The offence in subsection 13(2) prohibits the use and occupation of land in a provincial park or conservation reserve except in accordance with the statute or its regulations. The appellant submits that, by building the cabin in such manner, the respondent breached the provision, and as the cabin is a permanent structure the respondent breaches the prohibition from day to day for so long as the cabin remains.

[40] Whether an offence is a continuing one is a matter of statutory interpretation. Mindful of this the appellant refers to the following passage at para. 18 in Rutherford:

18 It is considerably easier to find a continuing offence where the statute provides for a penalty for every day that the corrective work is not done or the offending activity continues to be done. Such a provision is found in s. 93(11)(c) of the Act, which relates to continued disobedience of an order made under s. 93(5). The juxtaposition of this provision in s. 93(11)(c) to the absence of such a provision in s. 93(11)(b) is significant. Under s. 93(11)(b) there is no mention of a continuing contravention and on the facts of this case, the appellant was engaged to perform specific electrical work. The performance was far from perfect; indeed, in the course of it he has committed two offences but after the completion of the contracted work his offences are complete. Saving an order issued under s. 93(5) or a notice under rule 2-018, he has no more connection with the work than has a stranger. As his last connection was more than six months before the proceedings were commenced, he is protected from prosecution by the limitation section of the Provincial Offences Act.

(Emphasis mine.)

[41] The appellant submits that the absence of language expressly providing for a per diem penalty in subsection 13(2) is not determinative of whether the Court should find a continuing offence. It submits that in Ontario (Ministry of Labour) v. Guelph (City), 110 ONCJ 251 (C.J.) (“City of Guelph”), Epstein J. found a continuing offence notwithstanding the absence of such language in the charging provision: appellant’s factum at para. 32. The reference is to paras. 61-62 of the decision of Epstein J.

[42] The appellant also submits that finding a continuing offence would not undermine the purposes or rationales for statutes of limitations as set out at para. 22-24 in M. (K.) v. M. (H.), [1992] 3 S.C.R. 6 (“M. (K.) v. M. (H.)”):

22 Statutes of limitations have long been said to be statutes of repose; see Doe on the demise of Count Duroure v. Jones (1791), 4 T.R. 301, 100 E.R. 1031, and A'Court v. Cross (1825), 3 Bing. 329, 130 E.R. 540. The reasoning is straightforward enough. There comes a time, it is said, when a potential defendant should be secure in his reasonable expectation that he will not be held to account for ancient obligations. …

23 The second rationale is evidentiary and concerns the desire to foreclose claims based on stale evidence. Once the limitation period has lapsed, the potential defendant should no longer be concerned about the preservation of evidence relevant to the claim; see Dundee Harbour Trustees v. Dougall (1852), 1 Macq. 317 (H.L.), and Deaville v. Boegeman (1984), 48 O.R. (2d) 725 (C.A.). …

24 Finally, plaintiffs are expected to act diligently and not "sleep on their rights"; statutes of limitation are an incentive for plaintiffs to bring suit in a timely fashion. …

(Emphasis mine.)

[43] The appellant submits that interpreting section 13(2) of the PPCRA would not undermine these rationales. Any concerns of being held to account for ancient obligations, stale evidence, or proceedings that are out of time do not exist, because the conduct amounts to an ongoing breach, resulting in a new and discreet offence each day that the use and occupation continues.

[44] The appellant submits that the trial Court erred in finding that the evidence of occupation first came to the attention of an officer in January 2015. The date of discovery of the cabin by the officer is irrelevant because, as a continuing offence, each day that the cabin remains a new and discreet offence occurs, the evidence of which could not and did not exist the day before. Relying on this argument, it refers to the date range in the second charging information and submits that evidence of an offence that existed between January 17, 2016 to January 17, 2018, cannot have come to the attention of an officer before that date. It can only have come to the officer’s attention after the date of the offence, because it is a new and discreet offence each and every day.

6.3. Submissions on Commencement of the Limitation Period

[45] The second legal error alleged by the appellant is set out as follows at para. 26 of its factum:

ii) The Justice of the Peace erred in law by failing to find that there the s. 53 PPCRA limitation period refers to “evidence of the offence first coming to the attention of an officer,” it is referring to all the essential elements of the offence.

Likewise, the heading at p. 10 to the factum provides as follows:

THE JUSTICE OF THE PEACE ERRED IN LAW BY FAILING TO FIND THAT WHERE THE SECTION 53 PPCRA LIMITATION PERIOD REFERS TO “EVIDENCE OF THE OFFENCE FIRST COMING TO THE ATTENTION OF AN OFFICER”, IT IS REFERRING TO ALL THE ESSENTIAL ELEMENTS OF THE OFFENCE:

[46] The appellant relies upon two decisions in support. The first is the decision of Green J. in Deposit Insurance Corp. of Ontario (Liquidator of) v. Vinski, [2014] ONCJ 301 (C.J.) (“Deposit Insurance”). Reference is made to paras. 61-63 where the Court held as follows:

61 Put otherwise, and subject to the important “burden” flagged in Novak, there is a principle of discoverability that obtains with respect to limitation periods. One cannot prosecute that of which one is ignorant. Or, in the language of Peixeiro v. Haberman, supra, at para. 36: “discoverability is a general rule applied to avoid the injustice of precluding an action before the person is able to raise it”. The Supreme Court unanimously expressed the "general rule" in Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147, at para. 77:

[A] cause of action arises for purposes of a limitation period when the material facts on which it is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence.

While most of the relevant authorities address civil actions, the same principle, for reasons of public policy and fairness, applies to the assessment of pre-charge delay in the case of regulatory authorities as it does to a plaintiff's commencement of a cause of action.

62 As with many similar regulatory statutes, the limitation period at issue is engaged not by the occasion of an event or transaction but by when the relevant “facts ... first came to the knowledge” of the named regulator - here, the Superintendent. In construing closely comparable provisions, courts unsurprisingly have had cause to address both the meaning of the word “facts” and the standard by which to determine their occurrence and when they come within a regulator's knowledge.

63 The standard is an objective one. And the “facts” are simply those that make out the elements of the offence. …

[47] The second decision is that in R. v. Fingold, [1996] O.J. No. 3464 (C.J.) (“Fingold”), per Babe J. The decision was among those cited by Green J. in Deposit Insurance. See paras. 59, 64, 78 and 108. The appellant refers to paras. 62 and 68 which provide as follows:

62 Most Courts that have had to consider the section have construed "after the facts upon which the proceeding is based first came to the knowledge of the Commission" as being equivalent to when the Commission becomes aware of such facts with such a degree of confidence as would enable it to start the proceedings by laying an Information under Part III of the Provincial Offences Act. …

68 …Section 129(1), of course, does provide just such a statutory prescription for offences under the Securities Act. For such offences, while the authorities need not prosecute as soon as they are in a legal position to do so, there is a limited time within which they must decide whether or not to do so once they are such a position.

[48] The appellant submits, based on the decisions in Deposit Insurance and R. v. Fingold, that “the two-year limitation period in section 53 of the PPCRA begins to run when an officer has, or ought to have, evidence of all the elements of the offence in issue” appellant’s factum at para. 38.

[49] It submits that in the present case, “[t]he Officer did not have evidence that the cabin was in a park until February of March of 2017, such that the charge laid in January of 2018 was well within 2 years of when evidence of the offence first came to the attention of the officer”: appellant’s factum at para. 38.

6.4. Position on Costs

[50] The appellant concedes that section 129 of the Provincial Offences Act, R.S.O. 1990, c. P.33, vests this Court with jurisdiction to award costs. However, it submits that that the general rule remains that costs are not to be awarded absent extenuating factors, and that no such factors exist in this case. It asks that the request of the respondent be dismissed.

7. Position of the Respondent

7.1. Overview

[51] The respondent’s position is that whether the trial Court erred in finding that the charge is time-barred depends on two questions. First, did the limitation period set out in section 53 of the PPCRA is based on when the offence was committed or when it was discovered? This is submitted to be a question of law and the standard of review is correctness. Second, did the trial Court err in its analysis of when evidence of the offence first came to the attention of an officer as set out in section 53 of the PPCRA? This is submitted to be a question of fact or of mixed fact and law and is entitled to deference.

[52] It is the respondent’s position that the doctrine of continuing offence is irrelevant to the proceeding, as the limitation period is based upon discovery and not commission of an offence. The trial court did not err in focusing upon the date of discovery of the cabin or in determining as a result when the MNRF had evidence of the offence.

[53] The respondent asks that the appeal be dismissed with costs. In the event that the appeal is allowed, the respondent submits that the case should be remitted to the trial Court to proceed to stages two and three and determine whether the respondent had a valid defence to the charge based on an Aboriginal or Treaty Right.

[54] The submissions advanced by the respondent in support are as follows.

7.2. Submissions on a Continuing Offence

[55] The respondent submits that the plain language in section 53 of the PPCRA provides that the limitation period is based on “the day evidence of the offence first came to the attention of an officer.” The limitation period is based, in other words, upon discoverability.

[56] The respondent submits that because of this, the limitation period in section 53 does not depend on whether the offence set out in subsection 13(2) is a continuing one. It submits that the doctrine of continuing offence is irrelevant. The only question is, “When did the offence first come to the attention of the MNRF?”: respondent’s factum para. 19. That is the start date for the limitation period. The learned Justice of the Peace was therefore correct to focus on when the offence first came to the attention of an officer.

[57] The respondent submits that, despite the clear wording in section 53, the appellant submits that the date of discovery of the cabin is irrelevant, the theory being that subsection 13(2) creates a continuing offence, whereby each day the cabin remains is a new offence, and with the consequence being that the offence is not time-barred.

[58] The respondent submits that such theory is not correct. It submits that the doctrine of continuing offence “only comes into play when the limitation period is based on the day the offence is committed. It is irrelevant when the limitation period is based on the date the offence was discovered”: respondent’s factum at para. 21.

[59] The respondent submits that such distinction was made by the Court in R. v. Pickles, 184 O.A.C. 78 (C.A.) (“Pickles”), a case in which a dock constructed without a permit was discovered thirteen months later. The limitation period in question, subsection 36(8) of the Building Code Act, S.O. 1992, c. 23, provided as follows:

No proceeding under this section shall be commenced more than one year after the time when the subject-matter of the proceeding arose.

The respondent refers to paras. 12-16. It submits that a unanimous panel of the Court of Appeal rejected the Crown’s submission that the prosecution was not time-barred because the township could not have reasonably discovered the dock sooner. The Court held that, when a limitation period starts to run from the date of the offence, it is irrelevant whether or not the Crown had knowledge of it. The respondent also refers the Court to paras. 17-25. It submits that, because the limitation period was based on the commission of the offence, MacPherson J.A. for the Court went on to consider whether the offence was a continuing one.

[60] The respondent submits that the decision in Pickles tells us that when the limitation period is based on the commission of an offence it does not matter when the events came to the attention of the Crown. The limitation period is triggered on the date of the offence. The respondent submits that the reverse is also true. When the limitation period starts to run from the date the of discovery, it does not matter if each new day constitutes a new offence. The limitation period starts when the officer first knows about the offence.

[61] The respondent submits that the cases relied upon the by the Crown are in this sense not probative. They all deal with limitation periods based on the date of the offence.

[62] The respondent refers to the decisions in Rutherford and City of Guelph, and to the decision in MNR v. Pigeon et al., 2014 ONSC 236 (S.C.J.) (“Pigeon”), per Murray J., included among the authorities furnished by the appellant.

[63] The respondent submits that in Rutherford the defendant was charged with negligent electrical work. The limitations period was section 76(1) of the Provincial Offences Act which read as follows:

Proceedings shall not be commenced after the expiration of any limitation period prescribed by or under any Act for the offence or, where no limitation period is prescribed, after six months after the date on which the offence was, or is alleged to have been, committed.

(Emphasis: respondent.)

Since the Information was sworn more than six months after the faulty work, the Crown argued that the defence was a continuing offence and that, as a result, the charge was not time-barred. The Court of Appeal rejected the Crown's argument.

[64] The respondent submits that in City of Guelph an engineer and architect were charged with negligence after a building defect appeared several years after the construction of a building. The applicable limitation period, section 69 of the Occupational Health and Safety Act, read as follows:

No prosecution under this Act shall be instituted more than one year after the last act or default upon which the prosecution is based occurred.

(Emphasis mine.)

The defendants argued that the prosecution was time-barred; the Crown that the offences were continuing ones. Relying on Rutherford, the Court disagreed with the Crown. It held that the offences were therefore time-barred. The respondent submits, “[a]gain, this analysis was necessary because the triggering event was the ‘last act or default upon which the prosecution is based’”: respondent’s factum at para. 29.

[65] The respondent submits that in Pigeon the limitation period provided as follows:

103(1) A prosecution for an offence under this Act,

(a) shall not be commenced more than two years after the day evidence of the offence first came to the attention of a conservation officer; and

(b) shall not be commenced more than three years after the offence was committed.

(Emphasis mine.)

[66] In respect of subsection 103(1)(b), the respondent refers to paras. 22-25. It submits that in determining when the offence was “committed,” the Court assessed whether the offence was a continuing offence.

[67] In respect of subsection 103(1)(a), the respondent refers to paras. 22-24. It submits,

… Crucially, the Court did not consider whether the offence was continuing in assessing subsection 130(a) – when ‘evidence of the offence first came to the attention of a conservation officer’. Rather, in accordance with the wording of the statute, it looked at when the conservation officer was aware of the offence.

(Respondent’s factum, para. 31.)

[68] The respondent submits in short that the cases relied upon by the Crown are distinguishable. They deal with limitation periods based on the commission of an offence. It describes the focus of the Crown on whether the offence is a continuing offence or not as “misplaced” and submits that the trial Court was right to determine that the period started when the use or occupation” first came to the attention of an officer.

7.3. Submissions on Commencement of the Limitation Period

[69] The respondent submits that the trial Court committed no error in determining when the MNRF evidence of the offence. It submits that the appellant’s argument that the two-year limitation period does not run until the conservation officer “has, or ought to have, evidence of all the elements of the offence in issue” (factum of the appellant, para. 38) fails for two reasons. The first is that the MNRF knew all of the elements of the offence in January 2015. The second is that the defendant should not be penalized by the failure of the MNRF to confirm that the island was located in the park.

[70] In support of its position that the MNRF knew all of the elements of the offence in January 2015, the respondent submits that the appellant bases its objection upon the notion that the conservation officers initially believed the island to be part of a conservation reserve, and that the offence only came to the attention of the MNRF once they realized that the island was in the Lake of the Woods park.

[71] The respondent submits that it does not matter when the MNRF realized that the island was in a park. Subsection 13(2) of the PPCRA applies to land “in a provincial park or conservation reserve”: respondent’s factum at para. 36 (emphasis: respondent). This is one of the three elements of the offence, namely: (1) use and occupation of land; (2) which is unauthorized; and (3) which is in a provincial park or conservation reserve.

[72] The respondent submits that on the Crown’s own evidence the MNRF had evidence of all elements the offence in January 2015. The respondent refers to the testimony of conservation officer S. Harkof that the cabin was unauthorized when he attended the island on January 8, 2015, and to the testimony of land specialist K. Keith that when conservation officer Harkof attended the respondent’s cabin he believed the island to be “in the Lake of the Woods Conservation Reserve.” The conservation officer had, in other words, evidence of the third element of the offence at the time, namely, that the cabin in a provincial park or in a conservation reserve.

[73] The respondent submits that the limitation period starts when the Crown “first has evidence” of the “offence.” It submits that it was open to the trial Court to find that the MNRF first had evidence when conservation officer Harkof attended the island in January 2015. It submits that quite clearly, the conservation officer felt an offence had been committed at that time. He had posted a sign ordering the respondent to remove the cabin within 30 days. The respondent submits that the decision of the learned Justice of the Peace is entitled to deference and discloses no overriding and palpable error.

[74] The respondent submits that even if the MNRF did not have sufficient knowledge of the offence by January 8, 2015, the respondent should not be penalized for what it describes as “the MNRF’s lack of diligence”: respondent’s factum, para. 39.

[75] The respondent submits that the conservation officers first attended the cabin in January 2015, and that the Crown then took three years to realize that the land was in the park. The respondent submits that the Crown has provided no explanation why it took so long for the MNRF to realize that the land was in the park.

[76] The respondent submits that the purpose of regulatory limitation periods is to provide the government “a reasonable opportunity to investigate.” It refers the Court to para. 59 in Deposit Insurance, citing Fingold at para. 58. The paragraph in its entirety reads as follows:

59 The application of these principles in the context of regulatory offences was addressed in R. v. Fingold, [1996] O.J. No. 3464 (C.J.), an Ontario Securities Act prosecution involving a statutory limitation period near-identically worded to s. 331 of the CUCP Act. As said by Babe J. at para. 58:

The obvious intent of this section was to provide some measure of protection for potential defendants from having to face charges arising out of transactions from the distant past without barring prosecutions for matters that the [Securities] Commission was unaware of, and providing the Commission a reasonable opportunity to investigate once it had been made aware of a matter, in order to make a considered decision on whether to prosecute, based on the usual considerations in exercising prosecutorial discretion such as the strength of the case and whether the matter is serious enough to warrant the allocation of resources necessary to prosecute it.

(Emphasis mine.)

[77] The respondent submits that the MNRF failed to do so in this case. The respondent should not be penalized for its delay.

7.4. Position on Costs

[78] The respondent submits that the jurisdiction to order costs is found in section 129 of the Provincial Offences Act and that the relevant test to be applied was set out at para. 11 in R. v. Peel Air Services Ltd., [1992] O.J. No. 2322 (Gen. Div.) (“Peel Air Services”). Belleghem J. held as follows:

11 … In my view, to make a discretionary order against the Crown requires the impugned conduct to meet the various criteria set out in the cases above. There should be a finding of some type of advertent conduct in the proceedings which can be characterized as “oppressive”, “improper”, “abusive”, “frivolous”, “dishonest”, “unjust”, “irregular”, “contemptuous” or done with “ulterior motive”. This catalogue of conduct drawn from the cases is not exhaustive. It characterizes the “nature” of the conduct.

[79] The respondent submits that the MNRF is most concerned about the fact the respondent is asserting aboriginal rights with respect to an island within Lake of the Woods. It submits that the MNRF would not have felt compelled or been so eager to challenge the ruling that the limitation period was time-barred, except for their “ulterior motive,” resulting in this appeal being “frivolous.”

8. Decision

[80] For the reasons that follow, I have dismissed the appeal as well as the request for an order of costs.

8.1. Decision on a Continuing Offence

[81] The appellant argues that the trial Court failed to find that the offence prescribed in subsection 13(2) of the PPCRA is a continuing offence. It argues that this is an error of law.

[82] I agree that the standard of review is correctness. I find that the trial Court considered but rejected the Crown’s submissions finding that the issue was not relevant to commencement of the limitation period in section 53. The question for this Court is whether the trial Court was correct in finding that the issue raised (whether the offence prescribed in subsection 13(2) is a continuing offence) is not relevant to the issue of when the limitation period began to run in the present case.

[83] The appellant relies upon the definition in Rutherford in submitting that the offence of “use or occupation” in subsection 13(2) falls within the first of two categories of continuing offences. It is “a crime constituted by conduct which goes on from day to day and which constitutes a separate and distinct offence each day the conduct continues.”

[84] The argument is important for the appellant because the limitation period in section 53 is based upon discovery. The evidence at trial was that the cabin was discovered on January 8, 2015. If section 53 applies, then the question is when “evidence of the offence first came to the attention of an officer.”

[85] If the phrase, “evidence of the offence first came to the attention of an officer,” is interpreted to refer to discovery of the cabin then (to borrow from the language at para. 5 in Rutherford) the charge is “clearly out of time.” The appellant submits that finding a continuing offence changes this. The date of discovery of the cabin is rendered “irrelevant”: applicant’s factum at para. 1. It is the basis for the submission that, for each day the cabin remains, a new and discreet offence occurs the evidence of which could not and did not exist the day before.

[86] Mindful that the issue comes down to statutory interpretation, the appellant submits that the absence of language in the offence provision providing for a per diem penalty is not determinative. It does so because of the passage at para. 45 in Rutherford, which provides in part that “[i]t is considerably easier to find a continuing offence where the statute provides for a penalty for every day that the corrective work is not done or the offending activity continues to be done” (emphasis mine). I have no difficulty agreeing that the absence of such language is one consideration. The appellant also refers the Court to the rationales for statutes of limitations. The argument in effect is that if the Court finds a continuing offence then the rationales for statutes of limitations are not offended. [1]

[87] In considering the position of the appellant, I begin where Grange J.A. began in Rutherford, by considering exactly what the complaint was that brought about the charges. By this, I refer by this to para. 7:

7 It is important that we appreciate just exactly what it was that the appellant did that brought about the charges. He installed an improper panelboard and provided improper grounding on the service switch at premises located at Lot 35, Concession 5, Darlington Township. All of his work was performed and completed by August 23, 1985. The faulty work was not corrected during the period set forth in the charges and perhaps, indeed, remains in place to this day. Despite notices sent out by Ontario Hydro to the appellant on February 18, 1986, June 30, 1986 and July 7, 1986, requesting the correction of these and other defects and threatening the institution of these proceedings, no remedial work was effected.

The passage is important. It shifts the focus squarely upon the action that caused the prosecution to be involved.

[88] In the case before the Court, quite clearly, what the respondent did that brought about the charge was to build a cabin in a provincial park or conservation reserve in a manner not authorized within the meaning of the PPCRA. It was that act, discovered on January 8, 2015, which caused the MNRF, mistakenly believing that the cabin was built in a conservation reserve, to order its removal, to continue the investigation and to ultimately lay the charge before the Court.

[89] I continue the analysis by considering the offence and limitation provisions. I observe that limitation period in section 53 of the PPCRA begins to run upon the date of discovery. It starts after “the day evidence of the offence first came to the attention of an officer.” This is not the same as the limitation period that the Court considered in Rutherford.

[90] The limitation in Rutherford was based on the date of the commission or alleged commission of the offence. Whether the offence was a continuing offence (as opposed to one that had a discrete completion date) was therefore clearly relevant to whether the prosecution was out of time. It is for this reason that the focus of both the majority and dissent was upon what activity it was that brought about the charges. The majority identified the activity then considered whether the activity had completed or whether it continued. The dissent proceeded in a similar way. Tarnopolsky J.A. disagreed with the majority that the offence, as particularized, complained of a faulty installation: paras. 10, 20 and held that the information though “badly worded” did not alter the nature of the offence itself which was “not the act of installation, which is finite in time, but rather the neglect to comply with what is specified as a proper installation”: para. 21. Tarnopolsky J.A. held that the offence was a “classic illustration” of a continuing offence: para. 20.

[91] Rutherford illustrates how the doctrine of continuing offence can be relevant where the limitation period starts based upon commission or completion of the offence.

[92] It does not automatically follow that such doctrine is relevant when the limitation period runs on the basis of discovery. If anything, Rutherford stands as a testament to the importance of approaching the issue with close attention to the specific triggering event or activity as it relates to the limitation provision. I agree with the respondent that the decisions in Pickles, City of Guelph, and Pigeon can be distinguished on the same basis.

[93] I also agree with the submission of the respondent that Pickles and Pigeon support a conclusion that when the limitation period is based on discovery the question of whether the offence is a continuing offence is not relevant.

[94] Dealing first with Pickles, I accept the submission of the respondent that Pickles suggests that, when the limitation period is based on the commission of an offence, it does not matter when the events came to the attention of the Crown. The limitation period is triggered on the date of the offence. As much is suggested in the following comments of MacPherson J.A. at para. 22:

22 In my view, Wilson J. was correct to rely on Rutherford in the present case. The nature of the offences in the two cases is similar. In both cases, there was a specific act - faulty installation of electrical equipment and construction of a dock without a building permit. In both cases, the consequences of the specific act continued in a sense - the electrical equipment was not repaired and a building permit was never obtained. However, in Rutherford this court held that the completion of the specific act triggered the commencement of the limitation period. As Wilson J. correctly recognized, the same interpretation, and result, should follow in the present case.

(Emphasis mine.)

[95] Quite clearly, in cases such as Rutherford and Pickles the limitation period is triggered not by discovery but by the specific act. It is the specific act that becomes the focus of the inquiry.

[96] It would stand to reason that the converse might also be true, namely, that where the limitation period is based on discovery of a specific act, it does not matter if each new day constitutes a new offence. Completion or continuance is not relevant because it bears no relation to the trigger, which is simply discovery of the specific act.

[97] By discovery, I am mindful of the submissions of the appellant. Discovery is said to be irrelevant because each and every day that the use or occupation there is a new and discreet offence, the evidence of which could not and did not exist before. Discovery, not unlike the phoenix in mythology, is said to be born anew each and every day.

[98] I respectfully disagree. I follow the direction in Rutherford. The question comes down to “what it was that the appellant did that brought about the charges” (Rutherford at para. 7) and how that act relates to the offence and limitation provisions. In this case, whether the offence continued or not the specific act was building the cabin and it is the discovery of the cabin that to be considered.

[99] Before leaving the decision in Pickles, I would observe the following comments by MacPherson J.A.:

15 … The event which led to the charge against Pickles (or, in the language of s. 36(8) of the BCA"the subject matter of the proceeding") was building the dock without a permit. This specific act was completed in July 2000. It was, therefore, the completion of this act that triggered the commencement of the limitation period. There is nothing in the nature of this specific act or in the wording of s. 36(8) of the BCA to suggest that the limitation period commenced at the moment the township discovered' Pickles' act. Accordingly, the laying of the charge against him thirteen months after he had completed construction of the dock was outside the one year period set out in s. 36(8).

16 Moreover, I note that, in the context of regulatory statutes like the BCA, it is open to the legislature to specifically build the discoverability principle into the wording of a limitation period. An example is s. 129(1) of the Securities Act, R.S.O. 1990, c. S.5:

129(1)No proceeding under this Part shall be commenced in a court more than one year after the facts upon which the proceeding is based first came to the knowledge of the Commission.

In the absence of clear legislative language importing the discoverability principle into a statute, I see no reason why the court should expand the reach of the regulatory prohibition by resort to the discoverability principle.

[100] In my view, paras. 15-16 suggest that where clear legislative language importing the discovery principle into a statute is present, the intent of that language should be given effect. Such was not the case in Pickles. Such is the case here.

[101] Dealing next with Pigeon, I observe that Murray J. interpreted the limitation provision for the provincial charges, subsection 103(1) of the Fish and Wildlife Conservation Act, 1997 S.O. 1997, c.41 (“FWCA”), to effectively impose two requirements.

[102] For the first requirement, dealing with when “evidence of the offence first came to the attention of a conservation officer” (subsection 103(1)(a)), the Court did not consider whether the offence was a continuing offence. The Court instead considered when the conservation officer became aware of the offence. Murray J. held as follows:

25 There is no dispute that the investigating conservation officer first obtained evidence of the alleged offences in September, 2009. The provincial charges were sworn on July 26, 2011. The time period between these two events is 22 months which is within the two year limitation period provided by the FWCA.

[103] For the second requirement, that the prosecution “shall not be commenced more than three years after the offence was committed” (subsection 103(1)(b)), the Court did consider the issue of a continuing offence. Murray J. held as follows:

24 Possession of unlawfully killed wildlife is a continuing offence. Possession of unlawfully killed wildlife, in the words of the SCC in Bell, is "an offence where the conjunction of the actus reus and the mens rea, which makes the offence complete, does not, as well, terminate the offence. The conjunction of the two essential elements for the commission of the offence continues and the accused remains in what might be described as a state of criminality while the offence continues." The offence is terminated when possession ceases. As noted above, respondents were in possession of these animals until they were seized by conservation officers on November 16, 2009, (muskox #1) and on April 1, 2011 (muskox #2 and one wood bison).

[104] I agree with the respondent that the decision in Pigeon is an important one. It provides a clear illustration of how language similar to that in section 53 of the PPCRA operates, as distinct from language similar to that in Rutherford. It provides a clear illustration of how such language may be used by legislature to limit commencement under two distinct sets of conditions: discovery and commission of the offence. It supports that only in the latter case is the issue of a continuing offence relevant.

[105] To summarize, I apply Rutherford and find that the act which led to the charge, the use or occupation of land in a provincial park or conservation reserve, was building the cabin. Relying on Pickles and Pigeon, I find that because the limitation period in section 53 is based on discovery the question of whether the offence is a continuing offence is not relevant to commencement. Such consideration may well be important in other cases. It is not a relevant consideration in the present one.

[106] I find that such conclusion accords with the jurisprudence, the rationales for limitation periods, and the intent of legislature. It respects the approach in Rutherford. It is also not inconsistent with the approach to discovery taken in Pickles and gives effect to the clear legislative language importing the discoverability principle into section 53. It also not inconsistent with the rationales for limitation periods, nor with the doctrine of continuing offence, as illustrated in Pigeon. It maintains a respect for the different choices available to legislature in electing how commencement of proceedings is to be restricted.

[107] Such conclusion is to be preferred to one that would render the clear trigger for commencement of the limitation period – discovery – irrelevant in this case, and irrelevant in any number of other cases. There is no reason to do so. Doing so subverts the clear intention of legislature. It also introduces confusion in the way that statutes are to be interpreted including for cases where legislature has enacted provisions that incorporate commencement and discovery together, as in Pigeon. Doing so would also offend the rationales for limitation periods.

[108] In this latter respect, I refer again to para. 24 in M. (K.) v. M. (H.) but reproduce the paragraph in full:

Finally, plaintiffs are expected to act diligently and not “sleep on their rights”; statutes of limitation are an incentive for plaintiffs to bring suit in a timely fashion. This rationale again finds expression in several cases of some antiquity. For example in Cholmondeley v. Clinton (1820), 2 Jac. & W. 1, 37 E.R. 527, the Master of the Rolls had this to say in connection with limitation periods for real property actions, at p. 140 and p. 577, respectively:

24 The statute is founded upon the wisest policy and is consonant to the municipal law of every country. It stands upon the general principle of public utility. Interest reipublic ut sit finis litium, is a favorite and universal maxim. The public have a great interest, in having a known limit fixed by law to litigation, for the quiet of the community, and that there may be a certain fixed period, after which the possessor may know that his title and right cannot be called in question. It is better that the negligent owner, who has omitted to assert his right within the prescribed period, should lose his right, than [page31] that an opening should be given to interminable litigation, exposing parties to be harassed by stale demands, after the witnesses of the facts are dead, and the evidence of the title lost. The individual hardship will, upon the whole, be less, by withholding from one who has slept upon his right ....

(Emphasis mine.)

In my view, the position of the appellant would render the decision to build a cabin one that survives the date of its discovery indefinitely. The owner, and in time any subsequent owner or owners, would be held to account for their obligations indefinitely. It raises concerns all three concerns referred to by the appellant. It also offends the expectation of diligent action by the state.

[109] I conclude that the trial Court was correct to conclude the issue of a continuing offence to be irrelevant to the determination at hand. No error was committed by the trial Court in concluding that the limitation period began when the evidence of use and occupation first came to the attention of an officer.

8.2. Decision on Commencement of the Limitation Period

[110] I turn next to the issue of commencement.

[111] The second error of law that the trial Court is alleged to have committed is “failing to find that where the s. 53 PPCRA limitation period refers to ‘evidence of the offence first coming to the attention of an officer’, it is referring to the essential elements of the offence”: factum of the appellant at para. 26, heading at p. 10.

[112] The legal authority on which appellant relies is found in Deposit Insurance and R. v. Fingold. These decisions are said to support the legal proposition that “the two-year limitation period begins to run when an officer has, or ought to have, evidence of all the elements of the offence in issue.”

[113] I observe at the outset that the legal proposition advanced by the appellant at para. 38 is not the same expression of law as what the appellant advances at para. 26 and the heading at p. 10. The one at para. 38 refers to an officer who “has, or ought to have, evidence of all the elements of the offence in issue” (emphasis mine). The other two refer to “evidence … first coming to the attention of an officer” and “all essential elements of the offence.”

[114] This is an important observation to make. Deposit Insurance and R. v. Fingold are cases that deal with discovery and as such they are concerned with issues of reasonable diligence and fairness. See for example Deposit Insurance at para. 61 (relying on Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147 at para. 77) and to R. v. Fingold at paras. 62, 68 and 86. By fairness, I refer to the expectation that authorities once alert to an offence must investigate with a view to determining with reasonable diligence if evidence of the essential elements of the offence exist.

[115] I cannot conclude that the decisions in either Deposit Insurance or R. v. Fingold stand for the position that the appellant advances at para. 26 or in the heading at p. 10. I find that the position in law at para. 26 and in the heading at p. 10 is a partial, but not a full, expression of the proposition at para. 38. It does not include any reference to notions of reasonable diligence or fairness.

[116] This is important to observe, because the portion of the reasons of the trial Court that the appellant reproduces on this issue is as follows:

The prosecution has argued that evidence of the offence refers to all elements of the offence. I do not agree.

The argument referenced by the trial Court is the same as that which frames the legal argument on appeal.

[117] Were this Court to agree that the issue raised is one of law alone, it would conclude that no error of law was committed. The trial Court simply disagreed with a position in law that is not correct. It is not correct to that evidence of all elements of the offence must be present before the limitation period begins to run. A limitation period based on discovery may well begin to run before such time. It requires that the material facts have been discovered or ought to have been discovered: Deposit Insurance at para. 61. For the trial Court to reference an argument that does not refer to reasonable diligence or fairness and to then express, “I do not agree,” does not reflect an error of law.

[118] To the extent that the appellant may wish to point to the legal expression at para. 38, and the reference there to the phrase, “or ought to have,” I simply observe that the facts furnished by the appellant at para. 38 make no reference to the concepts that lie at the heart of discovery. The appellant simply submits, “[t]he Officer did not have evidence that the cabin was in a park until February or March of 2017.” This is the basis for the complaint by the respondent that the appellant “provides no explanation for why it took so long to realize that the land was in the park”: respondent’s factum at para. 39. It is the basis for the question the respondent poses of why the respondent should be penalized for delay that is not explained.

[119] I agree with the submission of the respondent. The delay is not sufficiently explained. For example, the conservation officer first attending the island believed it to be part of a conservation reserve. Yet, the initial charge was under the Public Lands Act, which does not apply to conservation reserves. It is not clear why this occurred, or how the delay can be fairly said to be owing to a mistake of whether the island was in a provincial park, as opposed to a conservation reserve. I find again that, were this Court to agree that the issue raised is one of law alone, appellate intervention would not be required.

[120] The issue raised is not an issue of law alone, however. It is an issue of mixed fact and law. The Court is tasked with deciding a legal issue, but this does not end the matter. The Court must go on to consider whether the trial Court erred on the facts and the inferences drawn. The decision of the trial Court must be reviewed for palpable and overriding error unless an extricable error of law can be identified for correctness review.

[121] Dealing first with the question of whether an extricable error of law can be identified, for the reasons already given I find that the answer is no.

[122] Nor can I find any palpable and overriding error. I agree with the submission of the respondent that the evidence before the trial Court established that the conservation officer who first attended at the cabin initially believed that the island was in a conservation reserve. I agree that as such, on the Crown’s own evidence, there was discovery of each element of an offence under section 13(2). Clearly, it was open to the trial Court to find on the evidence that the limitation period started when the conservation officers first attended the island on January 8, 2015. I can see no palpable and overriding error.

[123] The decision of the learned Justice of the Peace is entitled to deference. Deference has been given.

8.4. Decision on Costs

[124] I agree with the parties that jurisdiction exists under section 129 of the Provincial Offences Act to award costs on an appeal. I also agree that there must be extenuating factors to justify a costs award. Accepting that the test in Peel Air Services applies, I simply do not find that there is evidence that the MNRF “is most concerned about the fact that Mr. Boucha is asserting aboriginal rights with respect to an island within Lake of the Woods,” or that the MNRF would not have appealed had it not been for an “ulterior motive” resulting in a “frivolous” appeal. As there is no evidence the request for costs has been dismissed.

9. Disposition

[125] The appeal and the request for costs have each been dismissed.

Released: March 2, 2021 Signed: Justice P. Joubert

[1] It may be observed that the submission of the appellant begs the question. The conclusion it seeks to support (that the respondent’s conduct amounts to an ongoing breach) is advanced, quite literally, as a premise to the supporting argument (that the rationales that relate to limitation periods are not being undermined). Put another way, the premise to the supporting argument assumes the truth of the conclusion the appellant is advancing.