Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2021 05 17 COURT FILE No.: Halton 15-7457 01/02

IN THE MATTER OF an appeal under section 116(2) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended;

BETWEEN:

HALTON REGION CONSERVATION AUTHORITY Respondent

— AND —

JEAN THOMAS and PETER THOMAS Appellants

Before: Justice David A. Harris

Heard on: March 23, 24, 25, 2021 Reasons for Judgment released on: May 17, 2021

Counsel: Kenneth Jull and Jonathan Nehmetallah.......................... counsel for the prosecution Daniel Ciarabellini...... counsel for the defendants Jean Thomas and Peter Thomas

D. A. HARRIS J.:

Introduction

[1] Following trial, Jean Thomas and Peter Thomas were each convicted with respect to four counts alleging that, on or about July 23, 2013, in the Town of Milton, they had unlawfully undertaken development without written permission from the Halton Regional Conservation Authority within 120 metres of a provincially significant wetland contrary to section 28 of the Conservation Authorities Act and Halton Conservation Authority Regulation 162/06. [2] Jean Thomas was fined $10,000 plus costs and surcharge with respect to the first count against her. [3] Peter Thomas was fined $10,000 plus costs and surcharge with respect to the first count against him. [4] Sentence was suspended with respect to the remaining counts. [5] Both Jean Thomas and Peter Thomas were placed on probation. [6] The presiding Justice of the Peace also made a remediation order against both of them. [7] Both Jean Thomas and Peter Thomas have appealed against their convictions and their sentences. [8] These proceedings were under Part III of the Provincial Offences Act and the Appeal is brought pursuant to section 116 of that Act. [9] The issues before me can be divided into four categories. These are as follows:

(1) The presiding Justice of the Peace erred in convicting the Appellants (2) The presiding Justice of the Peace erred by dismissing the Appellants’ section 7 application (3) The presiding Justice of the Peace erred in not granting the Appellants’ section 11(b) application; and (4) The presiding Justice of the Peace erred in the sentences imposed.

[10] I will address these issues in the order set out above.

The Justice of the Peace Erred in Convicting the Appellants

[11] Counsel argued that the presiding Justice of the Peace erred in finding that the prosecutors had proven the Appellants guilty beyond a reasonable doubt. [12] It is perhaps a telling fact that this ground of appeal took up the least space in the Appellant’s factum and in oral submissions as well. [13] The presiding Justice of the Peace made the following findings:

(1) She could rely on the maps that were introduced as exhibits in this case subject to recognizing that they were “approximate”; (2) The maps and the evidence given by the various witnesses made it clear that a provincially significant wetland (PSW) existed “within a few metres if not a few feet” of the development by the Appellants; and (3) The riding ring was well within 120 metres of the PSW. [1]

[14] I am satisfied that her findings were reasonable and could be supported by the evidence. I am further satisfied that there was not a wrong decision on a question of law or anything that constituted a miscarriage of justice. [2] [15] In reaching that conclusion, I have noted that the test of whether a verdict was reasonable is whether the verdict was one which a properly instructed jury acting judicially could reasonably have rendered. [3] [16] A reviewing court is to apply a standard of correctness to questions of law, while a standard of palpable and overriding error is to be applied to questions of fact and questions of mixed fact and law where the legal principle is not readily extricable. [4] [17] The Appeal fails with respect to this ground.

The Justice of the Peace Erred in Dismissing the Appellants’ Section 7 Application

[18] The Appellants used a scatter gun approach to this issue at trial arguing that their rights as guaranteed by section 7 the Canadian Charter of Rights and Freedoms were infringed numerous times and in numerous ways. They continued with this approach on the appeal although they did not pursue the argument that their section 8 and section 15 rights had been infringed. [19] In dealing with these claims, I note at the outset that the burden of persuasion was and is on the Appellants to establish a breach of these rights on a balance of probabilities. [20] The presiding Justice of the Peace held that they failed to do this and I see no reason to disagree with her decision in that regard. [21] They argued generally that they were denied a fair trial. There is no basis to this argument. [22] They argued before me that the presiding Justice of the Peace erred in relying, in part, on the maps to establish the distance from the PSW to the riding ring. This was not part of the section 7 application before the presiding Justice of the Peace. The argument was properly made as part of their final submissions and was rejected by the presiding Justice of the Peace in her Reasons for Judgment. I have already addressed that issue above and will not repeat myself here. [23] They also argued that they were denied timely disclosure of certain evidence or not given it at all. [24] The record makes it clear that the Appellants received a great deal of disclosure material. The fact that they always asked for more does not detract from the fact that they received proper disclosure. As to the timing of this, disclosure was made in a timely fashion, and the Appellants were granted adjournments to allow them time to review any further disclosure whenever they requested that. [25] They complain here that the need for additional disclosure arose on occasion as certain witnesses testified. This is not something unique to this case. It is a common occurrence in court proceedings such as these. In any event the Appellants failed, both at trial and on this appeal to show how their case was prejudiced by this. [26] They were provided the disclosure that enabled them to dispute the accuracy of the maps. They were able to dispute the existence of the PSW and its location. They were able to dispute the qualifications of the prosecution witnesses. The fact that they failed in their attempts at this does not establish prejudice. [27] With respect to the issue of the qualifications of the witness, they complained that her record as an expert witness on prior occasions was not disclosed. However, they also objected when the prosecution attempted to provide that information when she testified. Apparently, her record was relevant only if it worked to the benefit of the Appellants. [28] They argued that they were improperly denied “disclosure related to Officer Murray’s history of misconduct”. [29] I disagree. [30] First of all, the Appellants did not ask for a “record of past misconduct” which might have fallen within the regime established by R. v McNeil. [5] They wanted to know every case in which Mr. Murray had laid charges previously so that they could pore through these to determine if he had done anything that they might claim was wrong on any of those occasions. They were not entitled to this and the presiding Justice of the Peace did not err in so ruling. [31] They were also not entitled to this because there was no basis for the allegation that he had overcharged the Appellants here. I will have more to say about this in paragraphs 40 to 43 below. [32] The Appellants argued before me that they were subjected to an abuse of process in a number of ways. I have broken these down into two categories. [33] Firstly, they were subject to a number of charges improperly. Mr. Murray falsely swore out all of the charges. He overcharged the Appellants. The Prosecution prosecuted eight charges without any evidence. [34] The second basis for alleging an abuse of process is an allegation that Mr. Murray committed similar offences or other offences himself when he ordered some of the trucks to dump their loads blocking access to the Appellants’ property. [35] I will deal with the allegation of overcharging first. [36] Clearly Mr. Murray did not falsely swear all of the charges. The Appellants were properly found guilty of eight of the 16 alleged offences. [37] Further, the fact that the other eight were dismissed on a non-suit application does not necessarily mean that those charges had been falsely sworn. [38] There is also a lack of proven prejudice arising from this. [39] The eight charges that the Appellants claim were false were in fact dismissed. [40] Further, I fail to see how the Appellants were prejudiced in any way by the number of counts that they were initially charged with. [41] While their Agent argued that they could have felt intimidated or threatened by the number of charges, there was no evidence that they did feel intimidated. They certainly did not testify to that effect. I recognize that they were not required to testify but I also remind myself here that they bore the burden of establishing on a balance of probabilities that their Charter rights were infringed here. [42] Further, they did not act like they were intimidated. They were not motivated to plead guilty. On the contrary, they fought the charges and did so quite vigorously. [43] Finally, I repeat, the Appellants were not convicted of any extra offences. A number were dismissed on a non-suit application. Others should have been stayed and will be at the end of this appeal but that does not render it improper for them to have been laid initially. [44] The second basis for alleging an abuse of process is the allegation that Mr. Murray committed similar offences or other offences himself when he ordered some of the trucks to dump their loads blocking access to the Appellants’ property. [45] Even if Mr. Murray broke the same law when he ordered the trucks to dump their loads where they would block the entrance to other trucks (and that is not something that the presiding Justice of the Peace was prepared to find or that I am prepared to find here), the Appellants failed to show how this constituted an abuse of process. It did not prejudice them at trial, nor did it render the subsequent proceedings “oppressive or vexatious” to any degree. [46] The suggestion that the probation order punished them for his “offence” is also without merit. The evidence was that Mr. Murray directed the trucks to dump their loads where they would block the entrance to the property and not in, or anywhere near the PSW. Further there is no evidence to suggest that the Appellants left those loads wherever they had been dumped such that they would have to be removed as part of the remediation order. [47] The Appeal also fails on this ground.

The Section 11(b) Application

Fresh Evidence

[48] On consent of both parties, I made an order pursuant to section 117 of the Provincial Offences Act admitting the following as fresh evidence on this Appeal, relevant only to the section 11(b) issue:

(1) Affidavit of Pamela Thomas and the transcript of her cross-examination; (2) Affidavit of Gary McHale and the transcript of his cross-examination; and (3) Affidavit of Elizabeth Gillingwater and the transcript of her cross-examination.

The Issues Regarding the Section 11(b) Ruling

[49] The Appellants argued that the presiding Justice of the Peace erred in:

(1) her calculation of defence delay; (2) her waiver analysis; (3) her analysis of delay caused by the defence; (4) her analysis of exceptional circumstances; (5) her analysis of discrete events.

[50] The Respondent disagreed with the Appellants on all of the above issues but argued that the presiding Justice of the Peace did err when she determined that the end of the trial was July 31, 2018, the anticipated day that she would release her judgment. The Appellants in turn disagreed with that position.

Standard Of Review

[51] This has been addressed in a number of recent decisions of the Ontario Court of Appeal. [52] In R. v. Daponte, Coroza J.A. stated:

The trial judge's characterization and allocation of various periods of delay, as well as the ultimate decision to impose a judicial stay for unreasonable delay, involves a question of law subject to a correctness standard of review: R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. (3d) 190, at para. 27. However, the trial judge's underlying findings of fact are reviewed on a standard of palpable and overriding error: R. v. Schertzer, 2009 ONCA 742, 248 C.C.C. (3d) 270, at para. 71, leave to appeal refused, [2010] S.C.C.A. No. 3; R. v. N.N.M., 209 C.C.C. (3d) 436 (Ont. C.A.), at para. 6. [6]

[53] Shortly after I heard oral argument in this case, the Court of Appeal released R. V. Safdar, where Feldman J.A. stated:

Deference is owed to a trial judge's underlying findings of fact. Characterizations of periods of delay and the ultimate decision concerning whether there has been unreasonable delay are reviewable on a standard of correctness: R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 25, leave to appeal refused, [2018] S.C.C.A. No. 325; R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. 190, at para. 27; R. v. Bulhosen, 2019 ONCA 600; 377 C.C.C. (3d) 309, at para. 73. [7]

[54] The current case is very similar to R. v. Safdar in the following respect:

In this case, unlike many, the late timing of the application, after the end of the trial and before the verdict, meant that the trial judge heard the entire trial evidence and observed the tactics and procedures employed by all counsel. He was not just working from a record of transcripts of hearing dates. He was uniquely positioned to assess what evidence was necessary, and what was redundant, and how much time should have been taken for various steps in the proceeding. Further, because there are no reasons for decision available to this court, we are not in a position to evaluate those assessments. All to say that in the unique circumstances of this case, particular deference is owed to the findings of the trial judge based on his observations of the conduct of the trial. [8]

[55] The presiding Justice of the Peace here also heard the entire trial evidence and observed the tactics and procedures employed by the parties. I am satisfied that, as a result, particular deference is owed to her findings too.

Defence Delay

[56] The presiding Justice of the Peace correctly noted that “defence delay” is divided into two components being:

(1) Delay waived by the defence, and (2) Delay that is caused solely by the conduct of the defence. [9]

Waiver

[57] The presiding Justice of the Peace found that the Appellants waived their section 11(b) rights:

(1) From November 14, 2016 to January 3, 2017, a of period of one month and 20 days, and (2) From January 3, 2017 to January 16, 2017 resulting in a 14-day period of defence delay.

[58] The Appellants argued before me that the waiver from November 14 to January 3 was “mere acquiescence”. [59] I disagree. The Appellants arrived in court on November 14, 2016 with their newly engaged Agent, [10] knowing that he needed time to prepare and that they were raising a constitutional challenge that had notice requirements that had not yet been complied with. They arrived knowing that they were not ready to proceed and intending to ask for an adjournment until January 3. The ensuing waiver was both informed and unequivocal. [60] The period of one month and 20 days was properly dealt with as having been waived. [61] I do not disagree with the Appellants with respect to the January 3 to 17 period. It is not clear to me that this time was ever waived. I note that the Respondent does not argue that it was waived. I note further however that the presiding Justice of the Peace also dealt with this period as delay caused by Defence conduct. The Respondent has also dealt with it as such. For reasons I set out below, I am also satisfied that it was properly dealt with as such. [62] This then leads me to address “Delay caused by Defence Conduct”.

Delay Caused by Defence Conduct

[63] The presiding Justice of the Peace held that there had been a number of occasions when trial proceedings could not continue due solely to the Appellants’ actions and that these periods of delay were properly deductible from the total delay as part of the Jordan calculus of net delay. [11] [64] She referred to the Supreme Court of Canada decision in R v Cody [12] and then stated the following:

[65] Clearly, the Applicants are to be afforded an opportunity to make full answer and defence, and Mr. McHale is turning over every stone, so to speak, however as paragraph 32 of Cody establishes, “Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11 (b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay” (emphasis). Further, paragraph 34 states, “the understanding of illegitimate defence conduct should not be taken as diminishing an accused person’s right to make full answer and defence. Defence counsel may still pursue all available substantive and procedural means to defend their clients. What defence counsel are not permitted to do is to engage in illegitimate conduct and then have it count towards the Jordan ceiling .” (emphasis) [66] I find that much of the defence action exhibits marked inefficiency and is therefore illegitimate. This court exercised much latitude in allowing Mr. McHale to be creative in his defence considering that he is acting as an agent for the Ap- plicants and is not a paralegal or lawyer to my knowledge. This defence action, both its substance and procedure, has attracted scrutiny in that the number and strength of the applications that have contributed to the total delay. [13]

[65] At this point I refer back to my earlier comments in paragraphs 54 and 55 and repeat that similar to the situation in R v Safdar, supra, the presiding Justice of the Peace here also heard the entire trial evidence and observed the tactics and procedures employed by the parties. As a result, particular deference is owed to her findings. [66] In addition, I am satisfied that she had ample reason to conclude that the Appellants had consistently shown “marked inefficiency” in their conduct of this case. [67] One glaring example of this can be found in the fact that, despite being encouraged to retain counsel or a licenced paralegal they did not engage [14] their agent until two weeks before the first trial date. This was done too late for the agent to review the disclosure and prepare for the trial. [68] They also decided to challenge the constitutionality of the legislation. This was done too late for them to serve timely notice of this in compliance with the law. [69] As a result, the trial could not begin on the days that had been scheduled. [70] Other examples of marked inefficiency can be found throughout her written reasons for her ruling. [71] The following are her specific findings of delay caused by defence conduct.

September 12 to October 18, 2016

[72] The presiding Justice of the Peace found that

[67] I agree with the prosecution submission that the period of time between the first available trial date of September 12, 2016 to the next judicial pretrial of October 18, 2016 ought to be considered delay attributed to the defence. The Thomas’ did not take advantage of the first trial date offered, even after acknowledging that substantial disclosure was given. They were made aware by the presiding judicial officer at the judicial pretrial on August 16, 2016 that they were welcome to make a pretrial motion if disclosure remained at issue. This period of delay amounts to 1 month and 6 days. [15]

[73] I see no legal or factual error in this finding. It was open to presiding Justice of the Peace to conclude that this delay was caused by the Appellants, especially in light of their overall behaviour throughout these proceedings.

January 3 to January 16, 2017

[74] This is the period of time which was also referred to in the previous section on “waiver”. [75] The presiding Justice of the Peace noted that shortly after she summarily dismissed the Appellants’ motion on the limitation period on January 3, they filed an application for certiorari in the Superior Court “rendering the January 16, 2017 trial continuation date useless.” She found that “this action was illegitimate as it did not deal with the charges, and instead was a measure of appeal of my decision on the “statue barred” question”. [16] [76] I see no legal or factual error in this finding. It was open to the presiding Justice of the Peace to conclude that this delay of 14 days was caused by the Appellants.

January 16 to February 13, 2017

[77] The Appellants agreed that the presiding Justice of the Peace properly deducted the period running from January 16 to 23. [78] They disagreed with respect to the Period from January 23 to February 13. They argued that they successfully applied for further disclosure on January 23. In light of their success, clearly it was not a frivolous application. [79] The Respondent characterized the application as the Appellants running out the clock to such an extent that the day was lost for trial purposes. While further disclosure was granted it was never used. This was yet another example of marked inefficiency and indifference to delay. [80] The Respondent also pointed out that the period between January 16 and 23 was lost because of the Certiorari application. This constitutes an “exceptional circumstance” [17] and should be dealt with as such. [81] They argued however that it is also an example of the “illegitimate behaviour” of the Appellants that broke up the trial, took away dates already set and caused delay. [82] I am satisfied that the period between January 16 and 23 should have been dealt with as an exceptional circumstance and I have done so here. [83] With respect to the time between January 23 and February 13, I see no legal or factual error in the finding of the presiding Justice of the Peace. It was open to her to conclude that this delay was caused by the Appellants, especially in light of their overall behaviour throughout these proceedings.

April 24 to June 2, 2017

[84] The presiding Justice of the Peace concluded as follows:

[72] On April 24, 2017, the Applicants submit another Charter challenge and raise a new argument on ‘settlement privilege’. This entire day is spent hearing submissions. Again, the court reserved judgement. June 2, 2107, played out in with a lengthy Voir Dire littered with objections and interruptions, which was now par for the course in this trial. [73] Of note, this court admittedly had opportunity to intervene and provide some guidance to Mr. McHale in particular regarding the focus of his questions and submissions, however this was met with either Mr. McHale speaking over the court, or engaging in further explanation or questioning of the court or prosecutor. This was not at all a situation of misconduct, but in my view, there was a palpable tension between prosecutor and agent and a clear need for each to articulate their position which only stretched things out further. For that reason, this court’s interventions were purposefully left to a minimum. [18]

[85] She concluded that the delay of one month and eight days was caused by defence conduct. [86] The Appellants disagreed with this and argued that they had raised legitimate arguments here. [87] Again, I see no legal or factual error in this finding of the presiding Justice of the Peace. It was open to her to conclude that this delay was caused by the Appellants, especially in light of their overall behaviour throughout these proceedings.

September 1 to October 2, 2017

[88] Inasmuch as there is considerable overlap between the presiding Justice of the Peace’s conclusions with respect to this period of time and the next one. I have also dealt with them together. The period from September 1 to October 2, 2017 is specifically dealt with at paragraph 97 below.

October 2, 2017 to July 31, 2018

[89] The presiding Justice of the Peace provided a factual summary of events through this period of time. [90] On October 2, 2017, the prosecutor concluded its case. The Appellants were successful in a motion for non-suit regarding counts 1 to 4 and 9 to 12. The Appellants then brought another application for additional disclosure, which the court summarily denied. The Appellants made an application to recall two prosecution witnesses and the prosecutor himself. Their Agent submitted that “the presentation of Ms. Matich and Ms. Axon was a tactical move to confuse the issue and basically suggests the prosecutor is acting in bad faith and this will form the basis for yet another Charter challenge, specifically Section 7 rights.” [19] [91] On October 6, 2017 the Appellants called their only witness and concluded their case. They withdrew the Section 7 Charter challenge and the request to recall witnesses. They indicated through their agent that they were waiting for transcripts that were ordered in August to support a section 11(b) application. In order to receive transcripts and prepare the motion, they request that the next trial dates on October 17 and 20, be vacated. [20] [92] The presiding Justice of the Peace later noted that there was no evidence that the transcripts had been ordered in August. [21] As it turned out, they had not been ordered then. The Appellants had waited until resolution discussions had broken down before they ordered transcripts in the latter part of September. The statement that they ordered transcripts in August was a false statement. [93] She also noted the Appellants’ arguments that the delay in obtaining transcripts was not their fault. The court system could have and should have produced these transcripts in a more timely fashion. These same arguments were expanded upon before me with references to the fresh evidence. [94] With respect to the transcript issue, the presiding Justice of the Peace noted that there was no evidence that the Appellants had made any effort to order transcripts in August. [22] In fact that had not been done then, although the Appellants did not tell her that. [95] She also noted that the Appellants’ agent “was well aware of the process used by the Burlington courthouse yet he did nothing to encourage an expedited process.” [23] [96] She rejected the suggestion that the prosecutor ought to have basically intervened on their behalf and “have contacted the Attorney General’s office to request the transcripts be done quicker to avoid an 11 (b) dismissal of the charges”. [24] [97] She then stated the following with respect to the period September 1 to October 2, 2017:

The Defendants have a positive obligation to prevent delay by engaging with all justice participants to improve efficiency, this includes courts administration. This inaction by the defence to follow up with administration on their re- quest to obtain transcripts in either paper or electronic form, speaks volumes of the culture of complacency that Jordon sought to quash. I therefore find the Applicants solely responsible for the delay in receiving transcripts since at least September 1st (based on information that Mr. McHale advised the prosecutor sometime in August, by email of his intention to obtain transcripts for 11 (b) purposes) to October 6th when they first mention the issue of transcripts to the court. This period of delay overlaps the Oct. 2nd trial date addressed below. For that reason, I will consider the delay to span from September 1, 2017 to October 2, 2017. This period of delay attributable to the applicants is 1 month. [25]

[98] With respect to the period following that, she stated:

[83] This court concludes that as soon as the prosecution concluded its case, on October 2, 2017, the court was prepared to hear from the defendants. The trial was delayed because of the illegitimate acts, i.e. additional disclosure application, application to recall witnesses, sec. 7 Charter challenge and/or omissions of the defence, i.e. failure to pursue transcript production, that were separate from their ability to make full answer and defence and amounted to frivolous applications and requests. [84] I find from the date the prosecution completed its case on October 2, 2017 the defendants actions moved to delay meaningful trial proceedings. This includes the defence action of vacating scheduled trial dates and not meeting their obligation to pursue transcripts for their own purposes, which lead to 11 (b) argument on April 6th and closing arguments on April 8th. The defence actions on each appearance had a ‘domino effect’ furthering trial dates right up to the anticipated end of the trial on July 31, 2018. [85] The trial ultimately will conclude on July 31, 2018. This period from October 2, 2017 to July 31, 2018 is a total of 9 months and 29 days. [26]

[99] I see no legal or factual error in the presiding Justice of the Peace's findings. It was open to her to conclude that both periods of delay were caused by the Appellants. [100] The fresh evidence does not assist the Appellants in their argument. [101] Firstly, it made it clear that the Appellants, through their agent had given false information to the presiding Justice of the Peace as to when the transcripts had actually been ordered. [102] In addition, it informed me that the Appellants had originally ordered 11(b) transcripts and then subsequently ordered full transcripts. They were informed by the court administrator in an email that this would increase both the cost and the time that it would take to prepare these transcripts. The Appellants did not reply to this email to inform the administrator that the second order was separate from the first one and that the original order should proceed on an expedited basis and the longer full transcripts provided later. [103] This failure on the part of the Appellants is consistent with the behaviour described by the presiding Justice of the Peace at paragraphs 92 to 99 above. [104] The above findings were based on the presiding Justice of the Peace’s belief that the end of the trial for these purposes would be July 31, 2018. This assumption was erroneous but I will deal with that later in these Reasons.

Exceptional Circumstances / Discrete Events

[105] In instances where the non-defence delay exceeds the relevant ceiling, it falls to the prosecution to show that the delay is reasonable because of exceptional circumstances. Such circumstances “lie outside the Crown’s control” in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) the prosecution cannot reasonably remedy the delays emanating from those circumstances once they arise. The circumstances need not be “rare or entirely uncommon.” To rely on exceptional circumstances, the prosecution need only show that it took reasonable steps to avoid and address the problem where possible to have done so. It need not prove that the steps taken were ultimately successful. [27] [106] One category of exceptional circumstances is discrete events. [107] The presiding Justice of the Peace found the following to be discrete events.

(1) The unexpected absence of a co-defendant, Frank Psaila at the judicial pretrial scheduled for March 1, 2016 as well as the Thomas’ request to consult counsel caused the matter to be adjourned to continue on May 17, 2016. The delay attributable to this discrete event is 2 months and 16 days. (2) A family emergency on the part of the Applicants resulted in 2 months, 30 days of delay between May 17, 2016 and August 16, 2016, when it caused a Judicial Pre-Trial to be rescheduled; and (3) Medical issues on the part of prosecution witness Mr. Murray caused 18 days of delay between March 20, 2017 and April 7, 2017 when it required an adjournment to the next trial date.

[108] With respect to the first event, the Appellants argued that this had not been raised as an issue by either party during their submissions on the 11(b) application. The presiding Justice of the Peace raised and decided the issue on her own initiative. The Appellants also argued that there was no factual foundation for her finding. [109] The Respondent did not address this issue in their factum or in oral submissions. Further, they did not include this time in their calculation of delay that should have been deducted as a discrete event. [110] I am also not including this time in my calculations. I am satisfied that the presiding Justice of the Peace should not have raised the issue on her own initiative without at least giving notice to the parties of any concerns she had regarding this time. [111] The Appellants did not take issue with respect to the second event either in their Factum or in their oral submissions. I am satisfied that this was a prudent move on their part. An unforeseen family emergency is one example of a discrete event explicitly provided by the majority in R. v Jordan. [112] With respect to the final event, the Appellants argued that the Prosecutor knew that Mr Murray was ill and could have called other witnesses in his place. The Respondent replied that the Prosecutor had not learned of the situation in time to do this. [113] I am satisfied that the presiding Justice of the Peace made no error in her finding and I would not disturb it.

End Date of the Trial

[114] The Respondent argued that the presiding Justice of the Peace did err when she determined that the end of the trial was July 31, 2018, the day that she anticipated that she would release her judgment. [115] Her reliance on that date was appropriate when she gave her ruling. [116] However, the Supreme Court of Canada subsequently released its decision in R. v. KGK [28] on March 20, 2020. [117] The majority decision in that case, written by Justice Moldaver, held that section11(b) extends to verdict deliberation time but that the presumptive ceilings established in R. v. Jordan only “apply to the end of the evidence and argument at trial, and no further”. [29] [118] The end of argument here was April 9, 2018. [119] The Appellants argued that R. v. KGK is not applicable here. They rely on the Supreme Court of Canada decision in Canada (Attorney General) v. Hislop and argue that R v KGK brought about a substantial change in the law and ought not to be given retrospective application. [30] [120] The respondent argues that R v KGK simply clarified the “existing law or rediscovered rules which are deemed to have always existed”. [31] [121] I had already concluded that the respondent’s position was correct even before the Ontario Court of Appeal decision in R. v. Safdar, supra was released. There the Court stated that:

Because the trial judge did not have the benefit of the K.G.K. decision, he counted much of the time following the close of the evidence and the submissions of counsel on the merits of the charges, including the argument of the s. 11(b) application and the deliberation time for both the delivery of the decision on the application and the preparation of the reasons for decision on the trial proper, under the Jordan framework. Relying on R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, at para. 79, he stated that the relevant period runs to the actual or anticipated date of the verdict. That was an error in law. [32]

[122] The Court of Appeal did not hesitate to apply R v KGK retrospectively. [123] Neither did I. [124] The appropriate dates for calculating delay in this case are July 22, 2015 and April 9, 2018. The period of delay between those days is 32 months and 19 days. [33]

Calculation of Net Delay for Purpose of Presumptive Ceiling

[125] I am satisfied that the following periods of time were properly deducted for the purpose of calculating net delay:

(1) May 17 to August 16, 2016 – discrete event – 3 months (2) September 12 to October 18, 2016 – Defence delay – 1 month 6 days (3) November 14, 2016 to January 3, 2017 – waiver – 1 month 20 days (4) January 3 to 16, 2017 – Defence delay – 14 days (5) January 16 to 23, 2017 – exceptional circumstance – 8 days (6) January 23 to February 13, 2017 – Defence delay – 21 days – the combined period November 14 to February 13 totals 3 months (7) March 20 to April 7, 2017 – Discrete event – 18 days (8) April 24 to June 2, 2017 – Defence delay – 1 month 8 days (9) September 1, 2017 to April 9, 2018 – Defence delay – 7 months 9 days

[126] The total time to be deducted is 16 months 11 days. That leaves a net delay of 16 months 8 days (32 months 19 days less 16 months 11 days). [127] That is less than the presumptive ceiling.

Is the Delay Still Unreasonable?

[128] The Appellants argued that the delay was unreasonable in any event on the basis that;

(1) The Appellants had taken meaningful steps to avoid delay; and (2) The Respondent took markedly longer than they reasonably should have to prosecute this case.

[129] The presiding Justice of the Peace rejected these suggestions and so do I. [130] The appeal fails on this ground.

The Appeal Against Sentence

[131] The parties agreed on a number of things at this stage. [132] At the end of the trial, the Prosecutor agreed that all but one count against each of the Appellants should be stayed on the basis of the principles laid out in R. v Kienapple. [34] The various counts simply particularized four different ways that the Appellants had committed the one offence. Somehow things got twisted around and suspended sentences were imposed with respect to the charges that ought to have been stayed. [133] Both parties and I are all in agreement that this should be corrected here. [134] The Respondent also agreed that this was not an appropriate case for maximum fines. They suggested that the fine for Jean be reduced from $10,000 to $5,000 and that the fine for Peter Thomas be reduced from $10,000 to $1,000. [135] I will be reducing her fine to $5,000 (plus costs and surcharge) and I will be replacing his fine with a suspended sentence. [136] In coming to that conclusion, I note that this was not a worst-case scenario. [137] There was no evidence that the Appellants actually damaged the wetland. [138] On the other hand, the remediation order will cause them to incur substantial expenses. The exact amount is not known but it is clear that it will be considerable. [139] Mr. and Mrs. Thomas can to a large extent be viewed as a single financial entity. The cost of the remediation process will be borne by both of them. The fine imposed on her will also impact him. It is for that reason that I will suspend his sentence rather than impose a further fine. [140] Speaking of the remediation order, the Appellants did not argue against this before me. [141] With respect to the Probation Order, this was clearly not done in the prescribed form. Further, the presiding Justice of the Peace did not specify how long this was to run for. She was required by law to do this. To that extent she erred. [142] I am satisfied that this order should run for one year and I will amend the order to reflect this. [35] [143] Most of the terms will remain. [144] The Appellants argued that the term requiring them to register a copy of the order in the land registry system was inappropriate. I am satisfied that this issue is now moot. The order made by the presiding Justice of the Peace has been registered on title. It has been there for more than 30 months now. I will not be including the term in the Probation Order I am making. [145] On the other hand, I am unaware of any jurisdiction whereby I can order the Respondent or the Land Registry Office to remove the copy of the previous order from their files.

Costs

[146] Both parties abandoned their respective requests for costs in this appeal.

Conclusion

[147] The appeal against the findings of guilt is dismissed. [148] Convictions will be entered with respect to the first count against Jean Thomas and the first count against Peter Thomas. The other counts will be conditionally stayed. [149] The fine on the count involving Jean Thomas is varied to $5000. She will have one year to pay this fine. [150] The fine on the count involving Peter Thomas is vacated and a suspended sentence will be substituted for it. [151] Both Jean Thomas and Peter Thomas will be placed on probation for a period of one year. [152] They will be subject to the statutory terms and, in addition, to the following:

1. They shall remove and not re-deposit on any area regulated by the Halton Region Conservation Authority ("Conservation Halton"), 1500 cubic metres of fill material from the property described as Part of Lot 5, Concession 1 NAS, Part 2 Plan 20R-1943 Milton / Nassagaweya, PIN Number 24970-0049LT, municipally known as 8735 Milborough (or Milburough) Line, in the Town of Milton, Region of Halton (the "Property''), and more particularly shall conduct such removal from the area marked in red and shown on the map attached as Schedule 1 being the riding ring constructed on the aforesaid property without permission which is within the area regulated under Ontario Regulation 162/06, R.R.O. 1990 (the "riding ring area"), and shall restore the riding ring area and any necessary adjacent land to their approximate original contours and vegetative conditions all to be completed on or before May 30, 2019. This removal shall be undertaken by them at their cost and to the satisfaction of and verified by Conservation Halton.
2. In addition, in connection with the above removal, they shall provide to Conservation Halton, and shall carry out the following: (a) A Remediation Plan(s) satisfactory to Conservation Halton showing the method by which the fill will be removed, grading plans showing the proposed grades (following fill extraction), the erosion and sediment control strategies to be employed during removal, including ingress and egress routes, the proposed method of stabilization of all disturbed areas and the timing of all of the above; (b) A Vegetation Plan satisfactory to Conservation Halton for the ultimate re­vegetation of the areas of fill removal including the identification of consultants carrying out the re-vegetation and the timing thereof. This will generally mean restoring the vegetation of the disturbed / graded riding ring area to pre-existing conditions or to a condition that is similar to the surrounding manicured area; (c) Independent confirmation to Conservation Halton that the removal, haulage and deposition of fill materials meets all provincial and municipal requirements; (d) Delivery to Conservation Halton of a topographic survey of the property showing the final grades and elevations of the riding ring area following the removal of the fill materials and the completion of the Remediation Plan; (e) In keeping with Conservation Halton's normal review costs for a project of this nature, payment to Conservation Halton on or before the delivery of item 2 (a) and (b) for Conservation Halton's project costs associated with the review of topographic surveys, remediation plans, vegetation plans and to conduct required compliance inspections, review and other related work in the amount of $11,500.00; (f) Notification by them to Conservation Halton a minimum of 7 business days prior to the commencement of the removal work;
3. They shall co-operate with and shall permit Conservation Halton, its employees, and other persons as required by Conservation Halton, reasonable access the property for the purposes of inspections, obtaining information, verification, and/or monitoring of the works and activities pertaining to the work required under this probation order.
4. The timing of the above items shall be as follows: (a) Item 2(a) - as soon as practicable; (b) Item 2(b) at least 3 months prior to the proposed commencement date of the removal of fill materials; (c) Item 2(c) at least 1month prior to the proposed commencement date of the removal of fill materials; (d) Item 2(d) within three months of completion of the removal of the fill materials and the revegetation of the area pursuant to the Vegetation Plan; (e) Item 2(e) with the first submission of the Rehabilitation Plan.
5. They shall not in the future conduct any activity contrary to the Regulations passed pursuant to the Conservation Authorities Act and specifically relating to any filling or interference with any wetland anywhere within the regulated areas of the property except in accordance with the provisions of the Regulation pursuant to the Conservation Authorities Act.

[153] The Remediation Order will remain as is.

Released: May 17, 2021 Signed: Justice D.A. Harris

[1] Her Analysis and Findings are set out in paragraphs 43 to 65 of her Reasons for Judgment. [2] Section 120 of the Provincial Offences Act sets out the powers on appeal against conviction. [3] R. v. Yebes, [1987] 1 S.C.R. 168; re affirmed in R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381. [4] Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 paras. 8, 10, 33 and 36. [5] R. V. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66. [6] R. v. Daponte, 2021 ONCA 112 per Coroza J.A. at para 15. [7] R. v. Safdar, 2021 ONCA 207, [2021] O.J. No. 1625 (Ont. C.A.) at para. 37 quoting R. v. Pauls, 2020 ONCA 220, at para. 40, affirmed 2021 SCC 2. R. v. Safdar was released after oral argument before me had been completed. Counsel jointly directed my attention to the decision and stated that I should consider it without hearing any further submissions. [8] R. v. Safdar, supra at para. 38. [9] Ruling on Section 11(b) Application at para. 36. [10] I use the word engage here because one does not retain an unpaid agent in the same sense as one retains counsel or a licenced paralegal. [11] Ibid, paras. 63 and 64. [12] R. v. Cody, 2017 SCC 31, [2017] 1 SCR 659. [13] Ruling on section 11(b) Application, Paras. 65 and 66. [14] As stated earlier, I use the word engage here because one does not retain an unpaid agent in the same sense as one retains counsel or a licenced paralegal. [15] Ibid, para. 67. [16] Ibid, paras. 68 & 69. [17] R. v. Tsega, 2019 ONCA 111; R. v. Daponte, supra at para. 19. [18] Ruling on Section 11(b) Application, at paras. 72 & 73. [19] Ibid, para. 75. [20] Ibid, para. 76. [21] Ibid, para. 79. [22] I bid, para. 79 [23] Ibid, para. 80. [24] Ibid, para. 81. [25] Ibid, para. 82. [26] Ibid, paras. 83 to 85. [27] R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, paras. 69 to 71. [28] R v KGK, 2020 SCC 7, [2020] 1 S.C.R. 100. [29] Ibid, at para. 3. [30] Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429. [31] Ibid, para. 85. [32] R. v. Safdar, supra, para. 22. [33] I point out here that this error did not impact the calculation of net delay here. Where R v. KGK says that the presumptive ceilings do not apply to the period following April 9, 2018, the presiding Justice of the Peace held that this was delay caused by Defence conduct. Either way, that time would not figure into the net delay. [34] R. v. Kienapple, [1975] 1 S.C.R. 729. [35] My powers on an appeal against sentence are set out in section 122 of the Provincial Offences Act.