R. v. Neilson, 2018 ONCJ 970

ONTARIO COURT OF JUSTICE CITATION: R. v. Neilson , 2018 ONCJ 970 DATE: 2018 12 10 COURT FILE No.: 18 00 17 Atikokan IN THE MATTER OF an appeal under s. 116 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended; BETWEEN: HER MAJESTY THE QUEEN Appellant — AND — TIMOTHY NEILSON Respondent Before Justice David S. Rose Heard on November 21, 2018 by video Reasons for Judgment released on December 10, 2018 Mr. B. Wilkie.................................................................................... counsel for the Appellant The Respondent Timothy Neilson was self-represented. Rose J.: [ 1 ] Mr.

Neilson was acquitted by a Justice of the Peace of the charge of: Unlawfully cause to be deposited any material, substance or thing on public lands, contrary to section 27(1)(

a) of the Public Lands Act R.S.O.

Chapter P. 43 [ 2 ] The trial took place over two days. The evidence established that Mr. Neilson had purchased a parcel of land, Mining Location AL 308 (hereafter AL 308), in the Township of Ramsay Wright in 2011. Mr. Neilson is a miner and he acquired the mineral rights to the land. AL 308 is quite rural, in an area dotted with lakes. AL 308 is not far from Reserve Bay, one such lake. Within Reserve Bay is Reserve Island, which has some 15 cottages.

The cottagers historically came and went from the their properties by travelling by boat to a boat launch just to the west of AL 308 and then traversing an old logging road cutting through AL 308 to gain access to a nearby municipal road Premier Road. [ 3 ] When Mr. Neilson acquired AL 308 the cottagers continued to use the logging road to access the boat launch but this caused tensions. Mr. Neilson was concerned about his liability to the cottagers when they entered his land, so he put up a gate without notice.

By the spring of 2012 the Ministry of Natural Resources and Forestry (MNRF) was receiving complaints from the cottagers about the road from the boat launch to Premier Road being blocked by a gate. In the spring of 2013 the MNRF acquired the trail by exercising its right to acquire 5% of the land of AL 308. The transfer deed to AL 308 gave the MNRF that right. The MNRF hired a surveyor and the trail then became its own separately titled Crown land parcel CL 16773 – which is an 18 meter wide road across AL 308. The old

logging road thus became Crown land CL 16773. The pictures entered into evidence show the trail to be nothing more than a cleareddirt path wide enough for a car to traverse. Mr. Neilson was notified that CL 16773 was now Crown land and provided a survey planshowing the road and its path across AL 308. [4] When the Crown acquired CL 16773 tensions only got worse. Mr. Neilson strongly disagreed with the manner in which theCrown acquired the road. Mr. Neilson took the position at trial, and on appeal, the Crown never legally acquired CL 16773.

Hisposition throughout these proceedings was that he owned AL 308 as a mining patent, which defeats all other property claims, includingthe Crown’s title to CL 16773. Accordingly, he argues, he can do whatever he wants on CL 16773, including moving soil and rockdebris onto the trail, because he is not subject to the Public Lands Act R.S.O. 1990 c. P. 43 when it comes to his use of the old loggingtrail. Mr. Neilson takes the position that his title stems from the Mining Act R.S.O. 1990 c.

M. 14. [5] The trial heard evidence from one of the cottagers affected by the dispute, and also MNRF personnel who testified about theirdealings with the parcels and also Mr. Neilson himself. In May of 2016 one of the cottagers notice a pile of dirt on CL 16773. Picturesentered into evidence show the debris, which I would describe as being a pile of dirt and rock perhaps 4 feet high. The rubble includesboulders which are sufficiently large that a heavy machine would be required to move them. The debris on one side of the road spillingonto the road way itself by a few feet. [6] Mr.

Neilson’s position was outlined in his factum on the appeal: 13) In May of 2016 with a hydraulic excavator I (Tim Neilson) did some remedial work on previous mining work that was damaged bythe MNRF in 2014. There was a small amount of debris piled off the side of the old logging road bisecting the property. Based on acomplaint from a cottage owner who had traveled through the property. The MNRF (B. Slack) called me demanding that I fill in my mining work I refused as my mining right allow me to explore and mind forminerals. [7] This reflected the Crown evidence led at trial. Mr.

Neilson’s evidence at trial was just that, namely he moved the debrisbecause “My situation is I should never have been charged under the Public Lands Act. Its mining property”. Notwithstanding theCrown acquiring CL 16773, he testified, “My mining rights still exist”. Trial Judgment [8] Her Worship acquitted Mr. Neilson. She found that s. 27(3) of the Public Lands Act had three elements to the actus reus: 1)Deposit or cause to be deposited; 2) material, substance or thing; 3) on public lands. Her Worship found that the Crown had not proven adeposit of material.

Nor did the Crown prove that the area in question, CL 16773 was actual Crown land, or that the area where thedebris was piled was actually Crown land. [9] Aside from those findings Her Worship made a legal finding. She found that the Mining Act provided Mr. Neilson with a legalexception to the operation of s. 27 of the Public Lands Act. Discussion [10] Findings of fact from a trial Court are to be afforded deference. Trial judges hear the evidence and are in the best position tomake findings from that evidence.

Appellate intervention is only permitted where there is a palpable and overriding error, or amisapprehension of the evidence, leading to those factual findings; see Housen v. Nikolaisen 2002 SCC 33, R. v. Morrissey, (ONCA) and R. v. Lohrer, 2004 SCC 80. [11] In this case Her Worship found that that the Crown did not prove that the trail CL 16773 was in fact Crown land. She reasonedthat the Crown did not put the land registration document into evidence. [12] The evidence at trial established that CL 16773 was Crown land as of September 2013 as a result of formal steps taken by theMNRF.

The documentation was registered at the Crown Land Registry Office in Fort Frances and registered against the survey plan. Aside from the Crown evidence, Mr. Neilson admitted in his evidence that he knew that the trail was Crown land. He was questionedabout the Crown’s right on the title deed to AL 308 to take 5% of the land, which was used to take title to CL 16773. That set up thefollowing exchange: Q. My, my question is did you know it was in your Deed the crown had a right to.. A. Yes I did. Q. and the Crown… A. Yes I did. Q. …now has done what it had the right to do? A.

I don’t believe they had the right to do it the way they did it. Q. Now… A. I believe my rights probably still exist. In spite of what they did my rights still exist. My mining rights still exist. [13] Mr. Neilson admitted in his evidence that the Crown exercised their right to take title to CL 16773. He took the position that it

wasn’t legal in his eyes, but he admitted to knowing that it happened. In order to find that the Crown never proved CL 16773 to beCrown land, the trial justice had to confront that evidence, which she never did. Her finding that CL 16773 was never proven to beCrown land therefore is at odds with the uncontested evidence from both Crown and Defence that it was just that. This is a palpable andoverriding error which is not entitled to deference. [14] The second finding made was that the debris was never piled onto CL 16773 because there was no proof of that.

That, however,is at odds with the evidence from the MNRF officer Ben Slack who identified pictures of the road which had the road and the debris. Hedescribed the location of the picture as being on Reserve Bay Road, which was the travelled portion of the road traversing Mr. Neilson’sproperty. The evidence was that there was only one road traversing the property – CL 16773. As Mr. Neilson said in his evidencereferring to his mining activity: “I have no security or anything on my property now. Like all my workings seem to be by the road andthat’s properly why the road is where it is.

It probably pre-existed as logging road.” He was asked about the location of the debrisrelative to the road, and said that some of the debris was already there, but, “I piled it more on the other side of that. Where the big rockin the picture your showing me. All that dirt I piled was past that. It was further away from the center of the road.” His evidence wasclearly an admission that he had piled at least some of the material on the road. [15] The Crown therefore led evidence that the pictures referred to CL 16773, and that the debris was on that road. Mr. Neilsonadmitted to that.

The trial justice’s finding that “I cannot be assured that the trail is on Crown land nor that the material is on theproperty of the Crown” would have to confront the evidence referred to above in order to be entitled to deference. By failing to do so thetrial justice fell into error. [16] In her ruling, the trial justice also found that “There is no evidence that the defendant brought any material, substance or thing tothe location of the alleged offence. The soil or dirt was there”.

Although I do not read the reasons for judgment as being firm on theissue, there is a suggestion that the evidence at trial was akin to “kicking dirt onto the road with the toe of your boot”. The pictorialevidence shows amply that the debris on the road included rocks which were sufficiently large as to require heavy machinery to bemoved. To the extent that the Justice found that the debris was so small to be a de minimus example of an infraction the evidenceshowed otherwise. [17] In sum, the findings of fact demonstrate a palpable and overriding error and are not entitled to deference.

Those findings of factat trial are the basis for the acquittal. [18] The second issue on appeal is whether, as Her Worship found, Mr. Neilson’s mining rights provided him with an exception to s.27 of the Public Lands Act. The Appellant argues that this was a legal error. s. 27 of the Public Lands Act is: 27(1) Unauthorized fillingExcept with the written consent of the Minister or an officer authorized by the Minister, no person shall deposit or cause to be depositedany material, substance or thing, (

a) on public lands, whether or not the lands are covered with water or ice; or (

b) on water or ice covering public lands. 27(2) Removal of material, etc.The Minister may remove any material, substance or thing deposited contrary to subsection (1), and any cost or expense incurred therebyis a debt due the Crown and may be recovered by the Minister in a court of competent jurisdiction in an action against the person whodeposited the material, substance or thing or the person who caused it to be deposited. [19] Notably, the

section speaks of no exceptions such as Mining Act properties. Other, unrelated, sections of the Public Lands Actdo refer to competing interests of mining and minerals, eg ss. 13, 27.1, 60, 65 to name but three. [20] In agreeing with the Respondent that the Mining Act trumps the Public Lands Act when it comes to surface rights, the trial Courtappears to have relied on Mastermet Cobalt Mines v. Canadaka Mines (1978), (ON CA), 21 O.R. (2d) 494 (C.A.). Withthe greatest respect to Her Worship, I believe that reliance on Mastermet v. Canadaka was misplaced.

That case involved ownership oftailings which had escaped a mine onto an adjoining property. The issue in the litigation involved who took ownership of the tailingswhich later turned out to be quite valuable. Was it the mine from where the tailings originated, or the adjoining land where they arrived? The question before the Court was what was meant by the phrases “Mining Rights” and “Surface Rights”. Referring to the Mines Act,and its successor the Mining Act, the Court found that the 17 The

definitions in the Act make it abundantly clear that in the mining industry in Ontario a conveyance containing the words in the1936 transfer of mining rights above-quoted confers an exhaustive right to mine all minerals, including the silver contained in thetailings. In my view, the acquisition of mining rights was never intended to be limited to the acquisition of valuable minerals in place, andin sufficient concentration to be extracted at a profit, as contended by a mining engineer called at trial to give evidence on behalf of theappellant. [21] The Court of Appeal in Mastermet v.

Canadaka upheld the trial judge’s decision to interpret mining rights expansively. Thetailings which had escaped the mine continued to be part of the mine even if they were physically located on the surface of an adjoiningproperty, and were therefore prima facie part of the surface rights of that property. To extend that finding to a broad right to dumpmaterial from a mining property onto Crown land is simply an erroneous

interpretation of the Mastermet v. Canadaka decision. [22] More importantly, a finding that the Mining Act trumps the Public Lands Act when the Minister seeks to enforce s. 27 of thePublic Lands Act is nowhere mentioned in the aforementioned Public Lands Act. If the Legislature had intended such a far reaching,important, balancing of public and private rights it would have said so. I therefore find that the trial Justice’s finding that the Mining Actafforded the Respondent a defence in law was a legal error.

Disposition [ 23 ] Based on the forgoing I would allow the appeal and quash the acquittal. [ 24 ] The Crown asks that a conviction be substituted. The trial heard evidence over two days. Notably the Respondent testified and admitted to the delict. Again, his position throughout the proceedings was that he had the right to deposit debris on the trail because the MNRF improperly registered CL 16773 as Crown land. His position on the Appeal was that I should, inter alia , “Restore AL 308 to original status in lands (sic) Titles – Survey voided”, which is far outside my jurisdiction.

Given the trial record available to me and positions of the parties, I am confident that a finding of guilt can be recorded under s. 121 of the Provincial Offences Act . Based on the trial record Mr. Neilson should have been found guilty. Based on the trial record there is no need for another trial. Mr. Neilson is found guilty of the charge. [ 25 ] The Crown asks for a $1000 fine. The record before me indicates a complete disregard by Mr. Neilson for the right by members of the public to traverse CL 16733. This is not a technical violation calling for a minimal penalty.

Clearly he was not willing to accommodate the cottagers using the trail to access the boat launch so that they could enjoy their properties. This started with erecting a fence across the road and led to moving debris there. Under the circumstances a $500 fine is appropriate. Released: December 10, 2018 Justice David S. Rose