Court File and Parties

Citation: Lake Simcoe Region Conservation Authority v. Brown, 2017 ONSC 7441 Court File No.: CV-17-133755 Date: 2017-12-13 Superior Court of Justice - Ontario

Re: Lake Simcoe Region Conservation Authority v. Brown

Before: Justice J. Di Luca

Counsel: John A. Olah, Counsel, for the Crown Murray Brown, Defendant – not appearing Sylviette Brown, Respondent, appearing in person

Heard: December 11, 2017

Endorsement

[1] Mr. Murray Brown is currently on trial before Justice of the Peace Seglins. He is facing five Provincial Offence Act charges under the Conservation Authorities Act and Regulation 179/66, relating to the alleged illegal dumping of fill at a property located at 23621 Park Road, RR #1, Pefferlaw, Ontario.

[2] The trial commenced in October 2016. It was scheduled to continue today, December 11, 2017. Mr. Brown has been mainly, though not exclusively, represented at trial by his agent and wife, Ms. Brown.

[3] The trial has been very contentious to say the least. Mr. and Ms. Brown view this case as a matter of grave importance. They seek to have the Courts examine a lengthy and at times convoluted history regarding the subject property, and the various issues that they claim form the backdrop to what might otherwise be seen as a straightforward case.

[4] The trial has also been repeatedly delayed and fractured and it appears that there is no immediate end in sight.

[5] This motion was brought by counsel for the prosecution. They are seeking an Order quashing proceedings commenced by way of a "Notice of Appeal and Judicial Review Application" dated September 11, 2017. This is the fourth interlocutory proceeding before the Superior Court of Justice relating to this matter.

[6] The purported Appeal and/or Judicial Review was commenced not by Mr. Brown in his capacity as defendant. Rather, it was commenced by Ms. Brown in her personal capacity as a proposed litigant. Needless to say, this is a unique occurrence and some context is required.

[7] As I understand it, Ms. Brown, separate and apart from acting as her husband's agent in relation to the charges, also sought standing as a party to the litigation. In effect, she argued before the trial court that she is the proper defendant in relation to the charges and not her husband. She invited the trial court to amend the informations to list her name, either alone or perhaps in addition to her husband. That request was denied. The Justice of the Peace gave reasons indicating that she did not have jurisdiction to add Ms. Brown as a party to the litigation.

[8] Ms. Brown also brought an application seeking a mistrial/recusal on the basis of a reasonable apprehension of bias. The Justice of the Peace heard submissions on this issue and gave a ruling denying the application.

[9] Ms. Brown, in her capacity as a proposed Appellant/Applicant, seeks to appeal and/or judicially review the "Combined Standing and Recusal Motions" as she describes them in her Notice of Appeal and Judicial Review. It appears that Mr. Brown may also have commenced a further proceeding entitled "Accused Combined Appeal and Judicial Review Application." That matter is not before me and I make no further comment on it.

[10] Turning to the issues, this is a matter that is being prosecuted under Part III of the Provincial Offences Act. The trial is ongoing and there has been no determination of the charges faced by Mr. Brown. The statutory appeal route for this type of case is provided by s. 116 of the Provincial Offences Act. Simply put, there is no statutory jurisdictional avenue available for an interlocutory appeal. This fact was made amply clear by my colleagues Bird J. and Campbell J., who were both called upon to address interlocutory appeals by Mr. Brown on earlier occasions: see R. v. Brown, Endorsement of Bird J. dated September 18, 2017 at para. 4 – 6 and R. v. Brown, Endorsement of Campbell J. dated January 16, 2017 at para. 4 and 5.

[11] More importantly, the statutory appeal route in s.116 of the Provincial Offences Act is only available to the defendant, the prosecutor or the Attorney General. Ms. Brown, in her personal capacity has no standing to bring an appeal, even if there is a conviction. This is fatal to her appeal.

[12] I also note that the request to be added as a party to the litigation is entirely baseless as a matter of law. This is a quasi-criminal prosecution. The parties are the Crown or prosecuting authority and the person or persons charged with an offence. There is no authority in the Provincial Offences Act permitting the addition of a party to a quasi-criminal trial proceeding under the Act. There is also no common law authority which provides for the addition or substitution of an uncharged defendant in a criminal or quasi- criminal prosecution.

[13] While Ms. Brown argues that she should have been charged with an offence instead of or in addition to her husband, it was only her husband who was in fact charged. It is her husband who is on trial. The Crown will need to prove that he committed the specified offences. If it turns out that the investigators charged the wrong person, the charges against Mr. Brown might very well be dismissed, but that is an issue for the trial that is currently underway.

[14] In terms of the request for Judicial Review, assuming for the sake of argument that this is a matter that can properly be the subject of judicial review, the proper forum would be the Divisional Court. While a single judge of the Superior Court can hear a judicial review application with leave in cases of urgency, or where the delay required to have the case heard by the Divisional Court will result in an injustice, no such request had been made before me. As such, I have no jurisdiction to hear this purported judicial review.

[15] I turn next to the mistrial/recusal motion. The proposed appeal/judicial review before me is brought by Ms. Brown in her personal capacity and not in her capacity as her husband's agent. In my view, Ms. Brown had no personal standing to seek a mistrial/recusal before Justice of the Peace Seglins. Her appearance before Justice of the Peace Seglins was in her capacity as agent representing her husband in relation to his charges. That said she did, technically speaking, also represent herself in the application for standing.

[16] The record suggests that the mistrial/recusal motion was brought in her capacity as agent on behalf of her husband, as the reasons of the Justice of Peace generally relate to allegations of bias in relation to the trial proceedings and not the motion for standing. Assuming that is the case, the purported appeal/judicial review launched by Ms. Brown in her purported capacity as Appellant/Applicant is not a vehicle through which a review of the Justice of the Peace's decision is to be undertaken. If Mr. Brown is convicted and if he decides to appeal, the mistrial/recusal issue is an issue he may decide to pursue in that appeal.

[17] I note further that while a prerogative remedy may lie on an interlocutory basis, I would not exercise my discretion to entertain such a request in this case. This case has not been framed as a request for a prerogative remedy. As well, there exists an appeal route that is readily capable of addressing the issue. In this regard, I adopt the comments of Campbell J. at para. 6 of his Endorsement.

[18] The motion to quash the Appeal and Judicial Review commenced by Ms. Brown in her personal capacity is therefore granted.

[19] The Crown seeks costs. This matter was before Minden J. on Friday, December 8, 2017. Notwithstanding the fact that the trial was supposed to continue on Monday, December 11, 2017, Minden J. granted Ms. Brown an opportunity to assemble responding materials and have them served and filed by 8:30 a.m. He reserved costs to the judge hearing the motion.

[20] On an earlier occasion Campbell J. declined to order costs, though he cautioned Mr. Brown against further wasting the Court's time and scarce resources with meritless interlocutory appeals. That warning went unheeded and Bird J. ordered costs of $2,000 against Mr. Brown payable within 30 days when she dismissed a further interlocutory appeal. I understand that those costs have not been paid.

[21] Mr. Brown did not appear before me. It is not his appeal/application for judicial review. As well, the timing of this motion was not entirely within the control of Ms. Brown. The prosecution brought the motion on an urgent basis on Friday, December 8, 2017, and it was then adjourned to Monday, December 11, 2017 to provide Ms. Brown an opportunity to prepare materials. That said, it certainly appears that Mr. and Ms. Brown have adopted a litigation strategy that seeks to frustrate and stall the process at each and every step of the way. I suspect that this interlocutory appeal is simply another attempt to grind the system to a halt. However, I am not prepared to impose costs on Ms. Brown personally.

[22] This trial needs to be brought to a conclusion without further delay. Any additional frivolous interlocutory steps that seek to thwart this goal will undoubtedly be met with significant costs sanctions.

[23] The appeal/judicial review is quashed.

Justice J. Di Luca

Date: December 13, 2017