Court File and Parties

COURT FILE NO.: 11/17 DATE: 2017-05-02 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JEAN and PETER THOMAS Applicants – and – HALTON REGION CONSERVATION AUTHORITY Respondent

Counsel: Jean and Peter Thomas, Self-represented Jonathan H. Wigley, counsel for the Respondent

HEARD: April 27, 2017

BEFORE: Gray J.

[1] The applicants apply, pursuant to s.140 of the Provincial Offences Act, for an order in the nature of certiorari to challenge a ruling made by a justice of the peace. The applicants are charged with an offence under the Conservation Authorities Act. It was argued before the justice of the peace that the charge is statute barred. The justice ruled that the charge is not statute barred, and she has proceeded with the trial.

[2] On January 20, 2017, I adjourned the application for certiorari and made an order, pursuant to s.141(2.1) of the Provincial Offences Act, requiring that the trial proceed pending the outcome of the certiorari application.

[3] I heard the application for certiorari on April 27, 2017.

[4] For the reasons that follow, the application is dismissed.

Background

[5] On July 22, 2015, one Nathan Murray, a Watershed Enforcement Officer with the respondent, Halton Region Conservation Authority, laid a charge against the applicants under the Conservation Authorities Act. In substance, the applicants are alleged to have engaged in construction and dumping activities on property within limits that are prohibited, without a required permit.

[6] On June 12, 2013, one Colleen Lavender, a Watershed Stewardship Technician with the Conservation Authority emailed Mr. Murray and stated:

I wanted to let you know that I followed a large gravel/dump truck this morning and it went into 8735 Milburough Line. It was definitely full of what looked like soil or sand. It looks like about 80 per cent of the property is regulated so I thought I would let you know.

[7] On July 23, 2013, Mr. Murray went to the property at 8735 Milburough Line and saw three dump trucks entering the driveway. He followed them onto the property and observed that a large amount of fill had been deposited, approximately 2000 cubic metres, adjacent to and somewhat within the tree line. He looked at a map that shows the regulation limits in that area of the Conservation Authority, and determined that the filling was well within that limit. Mr. Murray spoke to the workmen present who indicated that they were building a horse riding ring. The workmen could not provide any permits from the Conservation Authority.

[8] Mr. Murray had further discussions, at later periods, with Jean Thomas. Eventually, after Mr. Murray was satisfied that the prohibited filling, and ultimately the completion of the work, was done, and he was denied to permission to enter the property, he laid the charge on July 22, 2015.

[9] The applicants argued before the justice of the peace that the charge was laid out of time.

[10] Section 28(16), and (16.1) of the Conservation Authorities Act provide as follows:

28 (16) Every person who contravenes a regulation made under subsection (1) or the terms and conditions of a permission of an authority in a regulation made under clause (1) (b) or (c) is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to a term of imprisonment of not more than three months.

(16.1) A proceeding with respect to an offence under subsection (16) shall not be commenced more than two years from the earliest of the day on which evidence of the offence is discovered or first comes to the attention of officers appointed under clause (1) (d) or persons appointed under clause (1) (e).

[11] Effectively, the justice of the peace ruled that the two-year limitation period commenced to run on July 23, 2013, the day on which evidence of the offence first came to the attention of Mr. Murray. She held that the day Mr. Murray received the email from Ms. Lavender, June 12, 2013, was a day on which he received information that led to an investigation, but was not evidence of the offence. She stated, at p.17 of her ruling, as follows:

So this is what I find; I agree with the prosecutor in the sense that this email is purely information. I don’t consider it at this point to be evidence. It’s something that – it’s information that could lead to an investigation, but certainly in my opinion it’s not evidence.

[12] In the result, the justice of the peace ruled that the charge was laid in time.

Submissions

[13] Mr. Thomas submits that the charge was laid out of time, and the justice of the peace had no jurisdiction to entertain the charge or proceed with the trial.

[14] Mr. Thomas submits that whatever else the email to Mr. Murray was, it was at the very least “evidence” of an offence. While not decisive evidence, or evidence that would prove a charge beyond a reasonable doubt, it was at the very least evidence, and it came to Mr. Murray’s attention on June 12, 2013.

[15] Mr. Thomas submits that if the charge was laid out of time, the court has no power to proceed to hear it. In such circumstances, it is important that the court intervene at the earliest opportunity to prevent the waste of time and resources that will otherwise occur in proceeding with a charge that ought not to be heard.

[16] Mr. Thomas submits that the facts of this case illustrate the point. He points out that there have been several days of trial, and the trial is not close to being completed. With one remaining day scheduled to hear the matter, there is no reasonable prospect that it will be completed, and it will be necessary to schedule several more days. All of this time and wasted resources would have been saved had the correct ruling being made by the justice of the peace. It is thus important that the Superior Court intervene now to prevent any further waste of time and resources.

[17] Mr. Thomas acknowledges that applications for certiorari should be the exception, rather than the rule. However, he submits that the courts have recognized that applications for certiorari can be brought, before the completion of a trial, in appropriate circumstances. He refers specifically to R. v. 1353837 Ontario Inc. (2005), 74 O.R. (3d) 401 (C.A.).

[18] Mr. Thomas submits that in this case, where it is clear that the charge was laid out of time, the Superior Court should exercise its undoubted jurisdiction to intervene.

[19] Mr. Wigley, counsel for the respondent, submits that the application should be dismissed. He advances four grounds:

a) the justice of the peace’s ruling was made within jurisdiction, and certiorari does not lie; b) the justice of the peace’s ruling was correct; c) section 141(3) of the Provincial Offences Act is a bar to this application; d) there was no substantial wrong or miscarriage of justice warranting the court’s intervention.

[20] Mr. Wigley submits that the question of whether a charge was laid out of time is within the jurisdiction of the trial court to decide. Issues of that sort are raised and disposed of by trial courts all the time. A ruling on such an issue can be challenged on appeal. It is improper to interrupt the trial to challenge such a ruling by way of certiorari.

[21] Since the ruling was made within jurisdiction, certiorari is not available to challenge the ruling.

[22] Mr. Wigley submits that, in any event, the justice of the peace’s ruling was correct.

[23] Mr. Wigley submits that on a plain reading of s.28(16.1) of the Conservation Authorities Act, a charge can be laid on the earliest of:

a) the day on which “evidence of the offence” is discovered; or b) the day on which “evidence of the offence first comes to the attention of officers”.

[24] Mr. Wigley submits that in this case, what would have to have come to the attention of the officers of the respondent were facts and information that would support a charge, namely, who had given permission to illegally dump fill or who was facilitating it; evidence of actual dumping and/or grading; a determination that the activity was being conducted within a regulated area; and a determination that there was no permit from the Authority.

[25] Mr. Wigley submits that on June 12, 2013, no one in the Conservation Authority had information regarding any of these matters. All Ms. Lavender knew was that a dump truck full of soil or sand had entered the property at 8735 Milburough Line. It was only on July 23, 2013 that Mr. Murray had information that fill was being deposited by or on behalf of the applicants; there was actual filling going on; it was being conducted within a regulated area; and there was apparently no permit from the Authority.

[26] In these circumstances, Mr. Wigley submits that the justice of the peace was correct in concluding that evidence of the offence did not come to the attention of the Authority and its officers until July 23, 2013, and thus the charge was laid in time on July 22, 2015.

[27] Mr. Wigley submits that in any event the offence is a continuing one. Every day on which illegal dumping occurs is a separate offence, and thus, even if it could be concluded that evidence of an offence came to the attention of the respondent on June 12, 2013, evidence of the specific offence before the court came to the attention of the respondent on July 23, 2013.

[28] For these reasons, Mr. Wigley submits that the justice of the peace was correct in her ruling.

[29] Mr. Wigley submits that this application for certiorari is barred by virtue of s.141(3) of the Provincial Offences Act. In substance, that subsection provides that an application cannot be made to quash a conviction, order or ruling where an appeal is otherwise provided for.

[30] In this case, even if the justice of the peace’s ruling is incorrect, it can be corrected on appeal after the completion of the trial. Thus, according to the plain words of s.141(3) of the Provincial Offences Act, certiorari does not lie to challenge the ruling of the justice of the peace.

[31] Mr. Wigley relies on Ontario Securities Commission v. Caratel Ltd. (1992), 10 O.R. (3d) 491 (Gen. Div.); R. v. 1353837 Ontario Inc., [2005] O.J. No. 166 (S.C.J.); and R. v. Arcand (2004), 73 O.R. (3d) 758 (C.A.).

[32] Mr. Wigley submits that pursuant to s.141(4) of the Provincial Offences Act, certiorari shall not be granted unless a substantial wrong or miscarriage of justice has occurred. In this case, Mr. Wigley submits that the applicants have not demonstrated that there will be any substantial wrong or miscarriage of justice because they are entitled to appeal the ruling at the conclusion of the trial, assuming they are convicted.

Analysis

[33] Sections 140 and 141 of the Provincial Offences Act provide as follows:

140 (1). On application, the Superior Court of Justice may by order grant any relief in respect of matters arising under this Act that the applicant would be entitled to in an application for an order in the nature of mandamus, prohibition or certiorari.

(2) Notice of an application under this section shall be served on,

(a) the person whose act or omission gives rise to the application;

(b) any person who is a party to a proceeding that gives rise to the application; and

(c) the Attorney General.

(3) An appeal lies to the Court of Appeal from an order made under this section.

141 (1) A notice under section 140 in respect of an application for relief in the nature of certiorari shall be given at least seven days and not more than ten days before the date fixed for the hearing of the application and the notice shall be served within thirty days after the occurrence of the act sought to be quashed.

(2) Where a notice referred to in subsection (1) is served on the person making the decision, order or warrant or holding the proceeding giving rise to the application, such person shall forthwith file with the Superior Court of Justice for use on the application, all material concerning the subject-matter of the application.

(2.1) Where a notice referred to in subsection (1) is served in respect of an application, a person who is entitled to notice of the application under subsection 140 (2) may make a motion to the Superior Court of Justice for an order that a trial in the proceeding giving rise to the application may continue despite the application and the Court may make the order if it is satisfied that it is in the interests of justice to do so.

(3) No application shall be made to quash a conviction, order or ruling from which an appeal is provided by this Act, whether subject to leave or otherwise.

(4) On an application for relief in the nature of certiorari, the Superior Court of Justice shall not grant relief unless the court finds that a substantial wrong or miscarriage of justice has occurred, and the court may amend or validate any decision already made, with effect from such time and on such terms as the court considers proper.

[34] It is clear that, in proper circumstances, s.141(3) of the Provincial Offences Act will not necessarily bar an application for certiorari, even if it brought before the completion of a trial: see R. v. 1353837 Ontario Inc. (2005), 74 O.R. (3d) 401 (C.A.). In that case, it was alleged that there was a denial of natural justice committed by a justice of the peace, because she declined to allow cross-examination of a witness on an affidavit.

[35] Laskin J.A., for the Court of Appeal, held that a denial of natural justice constitutes jurisdictional error. Where there is jurisdictional error, an application for certiorari can be brought regardless of a right of appeal. At para. 17, he stated:

I agree that if the respondents are convicted, they could raise the justice of the peace’s order refusing cross-examination as a ground of appeal against conviction. But, in principle, they are not required to wait until the end of a trial to challenge a ruling that denies them procedural fairness.

[36] Justice Laskin went on to say, however, that applications for certiorari under the Provincial Offences Act should be granted only rarely. First, most erroneous rulings made during a trial will be errors within jurisdiction. Second, prerogative writs are discretionary. Even if a ruling denies a party natural justice, the court or tribunal retains discretion to deny prerogative relief and insist that the hearing proceed.

[37] At para. 21, Laskin J.A. stated:

The typical reasons given for refusing judicial review at the beginning of or during a hearing in the face of an otherwise reviewable wrong include maintaining the integrity of the process, avoiding fragmentation or delaying the proceedings, and the availability of an appeal on a full record.

[38] At para. 24, Laskin J.A. stated:

Despite these policy considerations favouring a non-interventionist approach, the rare case will arise where a court is justified in intervening before or during a POA proceeding. A judge’s erroneous ruling may make the proceedings so unfair that the interests of justice require the court to intervene and grant prerogative relief. The court may conclude that stopping the proceedings before the trial starts or at an early stage of the trial may be less costly and more efficient than to permit the flawed proceedings to go forward.

[39] In the actual case, Laskin J.A. ultimately concluded that there was no denial of natural justice, and thus no jurisdictional error. In his view, the justice had simply exercised her undoubted right to control the proceedings, and to prevent cross-examination from turning into a fishing expedition. Since no jurisdictional error had occurred, certiorari did not lie.

[40] I am not persuaded that this is one of those rare cases referred to by Laskin J.A. where certiorari should be entertained in the middle of the trial. This is not a case where the justice of the peace’s ruling is so obviously wrong that it is essential, in the interests of justice, to intervene and prevent flawed proceedings from going forward.

[41] I think the justice of the peace’s ruling was probably correct. I think it is unlikely that it can be said that evidence of the offence came to the attention of the Authority prior to July 23, 2013 when Mr. Murray did his inspection. Ms. Lavender’s email on June 12, 2013 was probably nothing more than information that prompted Mr. Murray to seek out evidence of an offence. However, I need not come to any final conclusion in that respect, because the ruling is not clearly wrong. It is not an injustice to require the applicants to continue the trial. If they are acquitted, they will have suffered no prejudice. If they are convicted, they can challenge the ruling on appeal.

[42] I think the justice of the peace’s ruling was made within jurisdiction. That being the case, s.141(3) of the Provincial Offences Act would appear to bar this application. Even if it can be said that in a rare case an erroneous ruling can be made the subject of an application for certiorari during a trial, this is not one of those rare cases.

[43] Having come to this conclusion, it is not necessary for me to address the other grounds raised by the respondent.

Disposition

[44] For the foregoing reasons, the application for certiorari is dismissed.

[45] There will be no order as to costs.

Gray J. Released: May 2, 2017