The Corporation of Haldimand County v. Joseph Scott Hill, 2023 ONCJ 105

ONTARIO COURT OF JUSTICE

DATE: March 8, 2023 COURT FILE No.: 18-0019

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

BETWEEN:

THE CORPORATION OF HALDIMAND COUNTY Respondent

— AND —

JOSEPH SCOTT HILL Appellant

Before: Justice Robert S. Gee

Heard on: December 14, 2022 Reasons for Judgment released on: March 8, 2023

Counsel: Kally Ho, for the Appellant Patrick Maloney, for the Respondent

On appeal from the conviction by Justice of the Peace Brett Kelly on March 6, 2019, and from the sentence imposed on the same date.

Gee J.:

Introduction

[1] The appellant appeals from his conviction by Justice of the Peace Kelly dated March 6, 2019, for destroying or harvesting trees of a prescribed species, contrary to s. 2 and 11 of County of Haldimand by-law 15-00 (“the by-law”). He also appeals from the sentence imposed being, a fine of $7,500.00 and restitution of $7,547.89.

[2] The appellant filed his original Notice of Appeal on March 26, 2019. He filed three more Supplementary Notices of Appeal on October 29, 2020, April 26, 2021 and, April 30, 2021. In his factum and in oral argument, the appellant has asserted his conviction should be overturned for two reasons. First, because the Justice of the Peace erred in his interpretation of the “own use” exception pursuant to s. 5(b) of the by-law; and second because the paralegal who represented the appellant at trial, provided him with ineffective assistance, causing a miscarriage of justice.

[3] In his appeal from the sentence imposed, the appellant asserts the Justice of the Peace erred by imposing a sentence that overestimated the number prescribed trees in the cleared area and as such should have imposed a lesser fine and amount for restitution.

[4] The respondent’s position is the Justice of the Peace did not err in his interpretation of the own use exception, the appellant’s paralegal did not provide ineffective assistance at trial and the sentence imposed was fit. As such, the respondent asks the appeal be dismissed with costs.

[5] For the reasons that follow, the appeal is dismissed, as is the respondent’s request for costs.

Overview

[6] The appellant is the owner of a farm property located at 851 Concession Rd. 5, in Haldimand County. The appellant arranged for Bruce Everets (“Everets”) to clear trees on the property. On November 28, 2017, Adam Chamberlin, a forestry project manager and Daniel Marina (“Marina”), a by-law officer attended the property and observed Everets clearing the land. They directed him to stop and commenced an investigation. As a result of the investigation, the appellant was charged with the destruction or harvest of prescribed trees in a woodland contrary to s. 2 of the by-law and for not giving notice to the county clerk at least five days prior to the operation contrary to s. 7(a) of the by-law.

[7] At the time Everets was ordered to stop, 5.39 acres had been cleared. Everets testified he had been instructed by the appellant to clear this and approximately three more acres than were cleared at the time he was directed to stop.

[8] The appellant did not testify at trial, relying instead to advance his own use defence on the testimony of his wife, Dawn Hill. She testified the primary purpose for the clearing of the trees was to plant hazelnut trees and then sell the hazelnuts to the chocolate company, Ferrero Rocher. She also testified that they used wood to partially heat their home and thought for that purpose they would use three or four cords of wood per year. This was one of the uses they were going to make for the cleared trees. Other uses for the cleared wood was for maple syrup making, and bonfires.

[9] Everets testified he was instructed by the appellant that the cleared trees were to be put into piles and that the appellant was going to burn the piles. As the piles are burned, they are pushed around by heavy machinery to clean up. At the time of the investigation by Chamberlin and Marina, the cleared trees had been pushed into 9 burn piles, one of which was still smoking. None of the trees had been cut for firewood.

[10] At trial the appellant primary challenge was whether it had been established that the area cleared was a woodland as defined by the by-law and that the trees cleared were of a prescribed species. The Justice of the Peace found both these had been established and these findings were not challenged on appeal.

[11] The appellant also argued his clearing of the trees fit within the own use exception in the by-law. This section states:

5. A person may destroy or harvest a tree of a prescribed species that is located in a woodlands, if: (b) the person destroys or harvests the tree for the person’s own use

[12] Own use is defined in the by-law as follows:

1(x) “Own Use” in subsection 5(b) and 7(a)(i) of this by-law do not include the sale, exchange or other disposition of the tree that is destroyed or harvested

[13] The Justice of the Peace found that based on the testimony of Ms. Hill and Everets the appellant had not established the removal of the trees was for his own use.

[14] As a result of these findings, the appellant was convicted of destroying or harvesting trees of a prescribed species, contrary to s. 2 and 11 of the by-law. The appellant was acquitted of the charge of not giving notice to the county clerk at least five days prior to the operation contrary to s. 7(a) of the by-law.

[15] The respondent on sentencing asked for a fine under the by-law of $7,500.00 and restitution in the amount of $13,048.74 arrived at based on a formula estimating the number of trees cut per acre and other associated costs for replanting and care. The amounts of restitution collected in situations like this do not go to replant the trees on the subject property but is used by the respondent in woodland remediation in other areas of the County. The appellant sought a suspended sentence and a period of probation.

[16] The sentence imposed was that of a fine of $7,500.00, and restitution in the amount of $7,547.89. The restitution was arrived at by the Justice of the Peace using a more favourable formula to the appellant than sought by the respondent that amounted to $1,400.35 per acre. The appellant was given a one year probation order that the restitution attached to and three years to pay the fine.

ANALYSIS

Conviction Appeal

Issue 1 – Own Use Exception

[17] Section 47(3) of the Provincial Offences Act placed the burden on the appellant at trial to establish he was entitled to rely on the own use exception. As such, to be successful in this claim, the appellant was required to establish on a balance of probabilities he cleared the trees for his own use.

[18] The appellant’s position is that the Justice of the Peace erred in his application of the own use exception in this case because he did not focus on the appellant’s intended use for the prescribed trees but instead relied on two reasons to find the exception did not apply. First, because the appellant had a purpose for the use of the cleared land and, second because the trees were organized into unattended smouldering burn piles.

[19] According to the appellant, the proper interpretation of the words “the sale, exchange or other disposition of the tree that is destroyed or harvested” found in the definition of “own use” mean that as long as the person is not transferring the trees to a third party, the exception applies.

[20] The appellant asserts the words “other disposition” must be read in conjunction with the words immediately preceding it, that being sale and exchange. Sale and exchange both mean the cut trees change hands for someone else’s use. Therefore, according to the appellant, “other disposition” should be interpreted to mean the cut tree is given away but the transaction is not a sale or an exchange.

[21] As such, according to the appellant, as long as the cut trees are not sold, exchanged or otherwise given to a third party the own use exception applies. It is further argued by the appellant that the exception places no requirement that the use for the prescribed trees must be determined prior to harvest.

[22] I find this is not a proper interpretation of the own use exception. This interpretation would be inconsistent with a plain reading of the by-law and inconsistent with its purpose. Modern statutory interpretation requires the words of the by-law to be read in their grammatical and ordinary sense, harmoniously with the scheme of the by-law, the object of the by-law, and the intention of the Municipality in passing the by-law. (See: Ontario (Minister of Transportation) v. Ryder Truck Rental Canada Ltd, 47 O.R. (3d) 171 (C.A.) at 174)

[23] The object of this by-law is set out in the recitals and is to “preserve and improve the woodlands in the Regional Municipality of Haldimand-Norfolk (as it then was) for the purpose of the production of wood and wood products, provisions of proper environmental conditions to maintain and enhance forest integrity and wildlife habitat, protection against floods and soil erosion, recreation, and the protection of water supplies.” (See the second recital of the by-law).

[24] The objectives of the by-law is the regulation and conservation of the trees in the Municipality. The interpretation of the own use exception urged by the appellant would be inconsistent with these objectives. Also, if the appellant’s interpretation was correct, and a person could harvest all the trees in a woodland without any purpose for them at the time, as long as they were not being transferred to a third party, it would render the word “use” in the own use exception meaningless.

[25] I find that a proper interpretation of the own use exception would require the person to have a purpose for the harvested wood at the time of harvest and the quantity cut must be consistent with that purpose. This interpretation is consistent with the finding in Halton (Regional Municipality) v. Stainton, 1991, 2 O.R. 3d 170. In that case the trial Justice found “…that the sheer magnitude of the trees that were cut and left to rot or stacked for firewood on the property is inconsistent with the defendant cutting trees “for his own use”.”

[26] I also find that the words “other disposition” are not restricted as the appellant asserts, to situations where the wood is transferred to a third party. The appellant has referred to the case of Halton (Regional Municipality) v. Vastis, 2008 ONCJ 44. In that case there was evidence that the landowner had harvested trees and was intending to give them to a third party who was going to use them for firewood. Cooper J., acting as an appellate court found this giving the wood to a third party constituted an “other disposition” and as such the landowner could not rely on the own use exception.

[27] Justice Cooper found the landowner’s intention here constituted an “other disposition” but did not hold that to transfers to third parties is the only manner in which an “other disposition” can arise, as is being urged by the appellant here. There are other ways harvested wood can be disposed of without sale or exchange or transfers to third parties. The wood can be left to rot as was implied in Stainton above, it can be burned, or it can be chipped. This is not an exhaustive list, it is but a few examples of ways in which harvested wood could be disposed of without a sale, exchange or transfer to a third party, but still constitute an “other disposition.”

[28] The appellant asserts the trial Justice erred when he rejected the own use exception claim in this case since Ms. Hill testified to there being personal uses for some of the wood, there was no evidence any of the wood was transferred to a third party and he relied too heavily on the primary purpose for the cutting of the wood that being to use the cleared land for another purpose.

[29] The application of the own use exception to the facts of the case is a question of mixed fact and law. As such, the trial Justice’s findings are entitled to deference and should not be interfered with in the absence of palpable and overriding error. See: Housen v. Nikolaisen, 2002 SCC 33 at paragraph 25.

[30] In this case I find no such error. The respondent does not dispute that a landowner can have another purpose for the cleared land and still rely on the own use exception. However, relying on another purpose for the land exclusively to reject the own use defence, is not what the trial Justice did here. I find he did what he was supposed to do, he reviewed all the evidence in the case, assessed it as a whole and found that the appellant had failed to prove the own use exception was available to him.

[31] In this case, in addition to the evidence the appellant wanted to repurpose the land for agricultural use, the evidence as to the use for the cut wood was somewhat equivocal. Ms. Hill testified they used three to four cords of wood to partially heat their home, they used some for maple syrup making and they used some for bonfires. There was evidence at trial that it takes approximately six trees to make a cord of wood. As such for home heating purposes the appellant would need 18 to 24 trees per year.

[32] The quantity of wood harvested here like in Stainton above, far exceeded the claimed uses by the appellant. There was evidence at trial that the 5.39 acres cut, constituted over 2000 trees, and the appellant was intending to cut three more acres. As well, Everets testified that he was simply pushing the trees into piles for burning and that’s what was found on inspection, with one of the piles still smouldering.

[33] It was argued by the appellant at the appeal that the ash from the burned trees would be used to fertilize the soil. However, the respondent pointed out there was no direct evidence to this effect at trial. The closest the evidence came to touching on this was the testimony of Everets and Marina. Everets stated in the past when clearing land for others, often the wood piles were burned and the ash left was spread out. Marina also agreed the ash might be spread on the field. He also indicated his grandmother used ash in her rose garden. There is no doubt that cut wood has many uses. This may be one of them. This does not assist the appellant though. The issue is not what could have been done with the wood, or what others have done with it, the issue was what the appellant’s intention for the harvested trees were at the time they were harvested. There was no evidence before the court the appellant intended to burn the trees in order to produce ash for fertilizing the soil.

[34] In light of this, and the other evidence before him, the finding made that the own use exception did not apply, was reasonable and available to the trial Justice and I would not interfere with it. As such, this ground of appeal is without merit.

Issue 2 – Ineffective Assistance of Counsel

[35] At trial the appellant was represented by a paralegal and as noted earlier, the appellant did not testify. The claims of ineffective assistance are organized into two categories. First, it is alleged the advice given by the paralegal about whether the appellant should testify was deficient. Second, the paralegal’s (hereinafter referred to as ‘trial counsel’) conduct and legal knowledge in the course of the trial was deficient.

[36] In order to succeed in an ineffective assistance of counsel claim, the appellant must establish three things. These were set out in R. v. Archer, [2005] O.J. No. 4348, in paragraphs 119 to 120 as follows:

1. Where the claim of ineffectiveness is contested, the appellant must establish the material facts on the balance of probabilities.
2. The appellant must demonstrate that counsel's acts or omissions amounted to incompetence.
3. The appellant must demonstrate that counsel's ineffective representation caused a miscarriage of justice.

[37] The Court in Archer also warned in paragraph 119:

Hindsight plays no role in the assessment. Allegations of incompetent representation must be closely scrutinized. Many decisions made by counsel at trial will come to be seen as erroneous in the cold light of a conviction. The reasonableness analysis must proceed upon a "strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance": R. v. G.D.B., 2000 SCC 22, 143 C.C.C. (3d) 289 at 298 (S.C.C.). As this court said in R. v. White, 114 C.C.C. (3d) 225 at 247:

An appellate court's review of trial counsel's performance should be deferential ... deference is called for because of the broad spectrum of professional judgment that might be considered reasonable. In most cases, even among the most skilled counsel, no two lawyers will defend an accused in the same way. Different defence counsel will use different trial strategies and tactics, different approaches to the examination and cross-examination of witnesses, different styles in opening and closing argument, all of them reasonable. The art of advocacy yields few, if any, absolute rules. It is a highly individualized art. What proves effective for one counsel may be ineffective for another. Most cases, therefore, offer defence counsel a wide scope for the exercise of reasonable skill and judgment. Appellate judges, many of them advocates in their own practices, should not be too quick to conclude that a trial lawyer's performance was deficient because they would have conducted the defence differently.

[38] The appellant’s failure to testify figures prominently in the ineffective assistance claim. Additionally, many aspects of trial counsel’s knowledge of the law and challenges to the evidence led at trial is alleged to be incompetent. Affidavits of the appellant, Ms. Hill and trial counsel were all filed. Cross examination, some of it quite extensive, especially the cross examination of trial counsel was conducted. Much material was filed, primarily by the appellant, in support of his claims. Similar to the situation in Archer above (see paragraphs 114 to 117), the version of events put forth by each side are significantly different. I am urged, mostly by appellant’s counsel to make credibility assessments of the affiants. Not surprisingly, the appellant submits that trial counsel is not a credible witness and his evidence should be rejected where it conflicts with that of the appellant.

[39] After having reviewed all of the extensive material filed, and carefully considering the submissions of counsel, I find the appellant has failed to make out any claim of ineffectiveness.

[40] I do not propose to deal with every claim of incompetence alleged but will deal with the most prominent ones argued in the appellants factum and focussed on in oral argument. Other claims of incompetence I find are more the product of hindsight and are now being alleged to be “erroneous in the cold light of a conviction” (See Archer, paragraph 119).

[41] I will deal first with the decision not to testify. Appellate counsel was careful in framing this argument. It is not alleged the appellant did not know or was not informed of his right to testify, the allegation is that the advice provided by trial counsel, and upon which the appellant ultimately acquiesced, was incompetent. I find the appellant has failed to establish the factual basis for this claim on a balance of probabilities.

[42] The allegation is that the appellant was entitled to meaningful advice from trial counsel about his right to testify and in this case, he did not receive it. He points to the case of R. v. D.A., 2020 ONCA 700 at paragraphs 34 to 38 for support.

[43] I agree the Court of Appeal in R. v. D.A. held the appellant was entitled to meaningful advice. However, this case is a far cry from the level of advice received in D.A.. In that case the only discussion the accused and counsel had about the decision to testify was one brief whispered conversation in the presence of the jury during the trial. The appellant’s situation is much different.

[44] There is no allegation that the appellant did not know he was entitled to testify. It is clear he did. His cross examination on his affidavit makes it clear that even before trial, the issue was discussed between him and trial counsel. At that time the appellant stated he did not think he needed to testify and it was never part of their strategy. He also admitted part of what went into that decision was the knowledge that were he to testify, he would be exposed to cross examination. One concern he had was that under cross examination his words would be twisted and he would say something that could be interpreted as making him appear guilty. He also was aware that were he to testify he would necessarily be required to answer questions that would be relied on to support the respondent’s case, such as whether he obtained a permit to cut the trees, whether he instructed Everets to clear the land, if he instructed Everets to burn the piles and if he intended to replant Hazelnut trees. Following the giving of evidence by Ms. Hill and the other defence witnesses, the issue was discussed again. The discussion focussed on the same issues and the appellant did not testify. In cross examination on his affidavit, he stated he would have had some value to add in his testimony, but never communicated this to trial counsel.

[45] The appellant argues that the advice given about whether to testify was tainted as it focussed too heavily on the disadvantages to testifying, and not enough on the advantages to it.

[46] A similar argument was advanced in R. v. K.K.M., 2020 ONCA 701. In that case at paragraph 83, the Court of Appeal said the following:

83 Trial counsel was not obliged to go through all of the evidence and identify the pros and cons of testifying and not testifying associated with each piece of evidence. Nor was counsel obliged to provide advice based on a hypothetical assessment of the evidence that conflicted with counsel's actual assessment. Counsel had fully explained to the appellant why he did not think the appellant should testify.

[47] The complaints about this now are as a result of looking at it entirely through the lens of hindsight. The issue was discussed between trial counsel and the appellant. Trial counsel gave his advice and opinion on the issue to the appellant. The appellant agreed and the decision was made as part of the trial strategy. As the trial unfolded, the issue was discussed again and the strategy remained the same. Given this, I find the appellant has not established the factual basis necessary to support this claim of incompetence.

[48] Before leaving this issue though one other aspect of it needs to be addressed. That is the Crown Patent issue. Apparently, title to the appellant’s land in question, originated from a Crown Patent. The appellant believes, or at least at the time of trial believed, that because his title originated from a Crown Patent, his land was not subject to any form of regulation by the respondent. He was free to do with it as he pleased, without the need to obtain any permission or permits from the respondent. Were he to testify, he intended to make this a central aspect to his defence.

[49] Trial counsel believed the Ontario Court of Justice did not have jurisdiction to entertain such a claim and that if that defence were to be advanced, it would need to be heard in Superior Court. This was another reason why trial counsel advised against the appellant testifying because if he did, and he raised this as a defence, the matter would then have to be moved into Superior Court and it would become too costly for the appellant.

[50] The appellant claims this advice was wrong, that the Ontario Court of Justice does have the jurisdiction to entertain such a defence in a case such as this. The appellant cited several cases where the issue was mentioned or raised in the Ontario Court of Justice. See: R. v. A.J.L. Janssen Landscaping Ltd., 2016 ONCJ 4304 at paragraph 11, R. v. Hughes, 2014 ONCJ 4185 at paragraph 8, R. v. Mackie, 2012 ONCJ 4719 at paragraph 8, and R. v. Mackie, 2010 ONCJ 6262 paragraphs 12 to 13.

[51] It does not appear in any of those cases that the issue of the Ontario Court of Justice’s jurisdiction to hear such a claim was ever contested. In any event, assuming without deciding the Ontario Court of Justice has jurisdiction to hear such a defence, the advice given by trial counsel was wrong, and that wrong advice amounted to incompetence, I would still have found that has not resulted in a miscarriage of justice.

[52] The reason there is no miscarriage of justice, is that the defence is without merit. At no time did appellate counsel argue there was any merit to the defence. In fact in the appellant’s factum, it is acknowledged that even if raised by the appellant in testimony, trial counsel was not obliged to argue it as a defence. In the Hughes decision above, cited by the appellant the defence is described as “…akin to the Organized Pseudolegal Commercial Argument referred to by Justice Rooke in the Alberta decision of Meads v. Meads, 2012 ABQB 571” and further that “[t]his claim with respect to the Crown Patent is part of the Organized Pseudolegal Commercial Argument rhetoric that was debunked in the Mead decision. This argument is wrong in law and has no value.” (See paragraphs 29 and 35).

[53] Even absent the Court’s jurisdiction issue, it is unlikely the advice or the decision to testify would be different. Not only would have advancing such a claim impacted the appellant’s credibility, it likely would have led him to making the type of admissions that he was already concerned about, such as he instructed Everets to clear the land and he never obtained any permits to do so. As such, there was no miscarriage of justice that would have flowed even if trial counsel’s advice on this issue was based on a wrong understanding of the law.

[54] Another aspect of trial counsel’s alleged incompetence is the claim he did not know the onus was on the appellant to prove the own use exception applied on a balance of probabilities. The appellant alleges trial counsel believed the onus was on the respondent to prove beyond a reasonable doubt that the own use exception did not apply.

[55] This is another allegation where I find the appellant has failed to establish the facts necessary to support the claim. This claim is based on the answers given by trial counsel in cross examination on his affidavit to two questions asked in succession.

[56] These questions were as follows:

Q. Okay. So for the ‘own use’ exception at trial you knew you had to raise a reasonable doubt by showing that Mr. Hill used the wood for his own use? A. That is correct. Q. Okay. Meaning the prosecutor for the County had to prove that the exception didn’t apply beyond a reasonable doubt? A. That is correct.

[57] The answer given by trial counsel to the first of these two questions could be interpreted that he was aware the onus was on the appellant. The answer to the second question could be interpreted that he believed it was on the respondent. This apparent discrepancy between these two answers, was never explored further by appellate counsel notwithstanding a very extensive cross examination. For a claim such as this to succeed, a better evidentiary record is needed. Some follow up to ensure there is no confusion or misunderstanding of the question asked and a clear understanding of trial counsel’s understanding of the issue is required before any assessment can be made.

[58] As such, given the evidentiary record before me, and the strong presumption of competence of counsel (see paragraph 140 of Archer above), I find the appellant has failed to establish the necessary factual basis for the claim.

[59] Several other aspects of trial counsel’s performance during trial have been criticized and alleged to be incompetent. I do not propose to deal with them individually. They are all criticisms based on hindsight. As noted in Archer above, appellate courts should be deferential to the decisions and strategies employed by trial counsel. No two counsel will conduct a case the same. The appellant was entitled to competent representation, not perfect representation. The representation he received met the standard of competence. As such this ground of appeal is also without merit.

Sentence Appeal

[60] As noted above, the appellant was fined $7,500.00 and ordered to pay restitution in the amount of $7,547.89. The maximum penalty under the by-law is a $20,000.00 fine or three months of imprisonment or both. The restitution is an amount to compensate for the destruction of the trees and is in lieu of an order requiring the replanting of the woodland.

[61] Even though it was in a criminal case, the Supreme Court in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 had this to say about the deference an appellate court should show to a trial judge’s sentencing decision:

11 This Court has on many occasions noted the importance of giving wide latitude to sentencing judges. Since they have, inter alia, the advantage of having heard and seen the witnesses, sentencing judges are in the best position to determine, having regard to the circumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the Criminal Code in this regard. The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention. Ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit.

[62] I see no reason why the same reasoning ought not to apply to a case such as this.

[63] In this case, the appellant has urged a reduced fine and a reduced restitution order. The reduction in the fine is based calculating the number of prescribed trees harvested in the woodland and calculating it as a percentage of the total trees harvested in the woodland (as not all trees harvested were prescribed trees) and then multiplying that percentage to the $7,500.00 fine imposed by the trial Justice.

[64] Similarly, the appellant has submitted the restitution order should have been calculated based on a different mathematical basis than the trial Justice did.

[65] I would not give effect to these arguments. The appellant is simply asking this court to re-sentence the appellant utilizing a method he devised that is more favourable to him. Sentencing is highly discretionary and cannot, at least in terms of the fine imposed, be reduced to a mathematical formula. Other factors are at play, such as denunciation and deterrence that have to be weighed and the trial Justice was in the best position to undertake that task. The reasoning process used by the trial Justice was reasonable and open to him on the record before him. The appellant has not demonstrated any error in law or principle in the reasoning or decision of the trial Justice, and there is nothing to suggest either the fine or the restitution order imposed after trial, is demonstrably unfit.

[66] As such, the sentence appeal fails.

Costs

[67] The respondent has sought its costs. It claims that the respondent’s costs have been over $40,000.00 to defend this appeal. The respondent is not seeking full recovery but has submitted an award of $20,000.00 in costs would be reasonable in this case.

[68] A court is allowed to make an order for costs pursuant to s. 129(1) of the Provincial Offences Act. This section provides:

129 (1) Where an appeal is heard and determined or is abandoned or is dismissed for want of prosecution, the court may make any order with respect to costs that it considers just and reasonable.

[69] The wording of this section mirrors that of s. 826 of the Criminal Code. Cases considering that section of the Criminal Code have held that cost awards should be rare, and the threshold for awarding costs is high. It has been held that cost awards should “be reserved for meritless, vexatious or abusive appeals that are so weak and doomed for failure that they can be considered a ‘procedural malfeasance’” (See: R. v. Leung, 1997 ABCA 1010 and Provincial Property Services Inc. v. Nova Scotia, 2021 NSSC 177).

[70] Notwithstanding that both the conviction and sentence appeal have been unsuccessful, I find the high threshold for a cost award here has not been met. Although I find the appeal was not overly strong, I do not find it rises to the level of malfeasance required to order costs.

[71] However, having said that, some comment is necessary. Upon a thorough review of the matter, the evidence against the appellant at trial was strong. He received a fair trial, with competent representation at which he was able to put forward all aspects of his defence for consideration. He was fairly and rightly convicted and his sentence was reasonable in the circumstances.

[72] In spite of this, he appealed as is his right. However, the appellant and counsel could perhaps have been more circumspect in their approach to the appeal. There are a number of things appellants and appellate counsel need to keep in mind in this and any appeal. For instance, although an appellant may feel aggrieved by a court decision and thereby exercise their right to appeal, that does not entitle an appellant to unlimited court time and resources. Court time is a limited resource. All justice system participants need to be cognizant of this and conduct themselves in such a manner that they are not unnecessarily utilizing scarce court time. In this case, there were approximately 4 banker’s boxes of materials. There was the initial Notice of Appeal filed then three more Supplementary Notices of Appeal filed. As well, additional materials were being served and filed by the appellant until shortly before the appeal was argued.

[73] There were allegations made about trial counsel that impacted his integrity and reputation that he would obviously feel required a response. As noted, cross examinations on the affidavits took place. The cross examinations of the appellant and Ms. Hill took place on one day and were both completed in a matter of hours. The cross examination of trial counsel took place over two days, and exceeded the timeframes set for his cross examination agreed to at a Judicial pre-trial.

[74] In terms of case management, there were several Judicial pre-trials held and other case management appearances. Had this court not placed time limits on oral argument on the day of the hearing, the hearing of the appeal itself would have taken at least a full day of court time and likely not finished the day it was commenced.

[75] Finally, counsel cannot lose sight of the stakes. As noted above, the costs to the respondent in defending this appeal have been significant and now will have to be borne by the taxpayers of Haldimand County. Although, I have no firsthand knowledge of what the costs to the appellant are of this appeal, given the materials filed and the manner it unfolded, no doubt they were also significant.

[76] All this time, effort, and resources were expended on a matter where the penalties totaled just over $15,000.00. Were this a civil case, I would note this amount is near the lower end of the monetary jurisdiction of the Small Claims Court. Although the penalties here could be a significant sum to the appellant, even had he been successful on this appeal, it is doubtful he would have saved much if anything, given the costs of the appeal.

Conclusion

[77] For all of the foregoing reasons, both the appeal against conviction and sentence are dismissed. The request for costs made by the respondent is also dismissed.

[78] The appellant has requested if the appeal were dismissed that he be given the same three years to pay the fine imposed by the trial Justice. He also seeks three years to pay the restitution, even though that was made part of a one year probation order imposed by the trial Justice.

[79] I see no reason to vary any of the terms of the sentence imposed. If the sentence was not stayed on appeal, and if the appellant needs more time to pay, he can make the appropriate requests to the trial Justice or the court that imposed sentence for an extension of time as was explained to him at the time of sentencing. If the sentence was stayed on appeal, then that stay is now lifted and the appellant will have the time remaining that was originally granted to pay the fine and restitution or seek a further extension from the trial Justice or the court.

Released: March 8, 2023 Signed: Justice Robert S. Gee