R. v. Natt Development Ltd., 2021 BCPC 282

Citation: R. v. Natt Development Ltd., Natt and Natt 2021 BCPC 282 Date: 20211013 File No: 237072-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. NATT DEVELOPMENT LTD. GURBINDER NATT ISHWINDER NATT ORAL RULING RE APPLICATION TO VARY ORDER OF THE HONOURABLE JUDGE D. BOBLIN Counsel for the Crown: A. Wu Counsel for the Accused: R. Arora Place of Hearing: Surrey , B.C. Date of Hearing: October 13, 2021 Date of Ruling: October 13, 2021

[ 1 ] THE COURT: This is an application by Natt Development Ltd., Gurbinder Natt and Ishwinder Natt to vary the order of Judicial Justice Blackwell pronounced on January 21, 2021, pursuant to s. 263.1 of the Community Charter, to change the deadline for compliance with the order from June 1, 2021 to June 1, 2022. The City of Surrey is opposed to the application. [ 2 ]

Section 263.1 of the Community Charter provides that: If a person is convicted of an offence under ss. (3) or against a municipal bylaw in a prosecution commenced by an information in Form 2 under the offence Act , in addition to the penalty under ss. (3) or established in accordance with s. 263, the court, having regard to the nature of the offence and the circumstances surrounding its commission may make an order prohibiting the person from doing any act or engaging in any activity that may, in the court's opinion, result in a continuation or repetition of the offence, and directing the person to take any action the court considers appropriate to remedy the harm that resulted from the commission of the offence. [ 3 ] Subsection (2) of s. 263.1 provides that: An order under subsection (1) must specify the duration of the order, which may not exceed one year. [ 4 ] Subsection (3) of s. 263.1 is an offence or penalty

section which provides that: A person who fails to comply with an order under subsection (1) commits an offence and is liable on conviction to a fine of not more than $10,000 or to imprisonment for not more than 6 months, or both. [ 5 ] The specific terms of the order that the applicants seek to vary are set out in Judicial Justice Blackstone's order, which was made after the accused, Natt Development Ltd., had been convicted of charges related to the failure to comply with zoning bylaws.

As a part of the sentence, Judicial Justice Blackstone imposed an order that required Natt Development Ltd. to do a number of things by June 1, 2021, including removing all unpermitted vehicles and trailers from the property, ceasing to use the property as a parking lot, removing all unpermitted scaffolding and/or construction–related materials stored on the property, and removing all wrecked vehicles stored outdoors on the property. [ 6 ] Further, she imposed on Natt Development Ltd. an order that from June 1, 2021 to January 21, 2022, Natt Development must not do a number of things, which would basically prevent the continuation or repetition of the offences that they had been convicted of. [ 7 ] There are two issues that I must resolve, the first of them being the jurisdictional issue, or does the Community Charter confer an implied jurisdiction on this court to remain seized of the order under s. 236.1, such that it is open to me to vary it. [ 8 ] The second issue is if the legislation does confer that implied jurisdiction, should the relief be granted. [ 9 ] Counsel for the City and counsel for Natt Development provided me with a number of authorities.

I have read them all in brief, or scanned them, given the little time that I had, and I will refer to them as necessary to explain my decision. [ 10 ] I will deal with the jurisdictional issue first, obviously, because it is determinative, depending on what my decision is. [ 11 ] There is no dispute between the parties that the Provincial Court of British Columbia is a statutory court, which means that I do not have inherent jurisdiction like a judge of the Superior Court in this Province has, and so I must derive any authority to accede to the application from statute. [ 12 ] It is also not disputed that neither the Community Charter nor the Offence Act expressly permits me to vary the order, but in this case, the applicant argues that there is implied jurisdiction, based on the legislation. [ 13 ] The applicant refers to the test for implied jurisdiction set out in the decision of R. v.

E.K. , 2012 BCPC 132 , which is a criminal decision that dealt with an application to vary an intermittent sentence of imprisonment. There are a number of helpful comments in this decision to which I will refer, but the test for implied jurisdiction is dealt with by the court in paragraph number 28 of that decision, and I am using the applicant's written submissions in order to quote from that decision. [ 14 ] I will quote paragraph 28 in its entirety, because I am going to be referring to it a little bit more later on.

Paragraph number 28 provides: The question is whether the power to vary an intermittent sentence, in favour of the prisoner, is conferred by “necessary implication” by

section 732. One may so conclude where: (

i) an intention to confer the power is “…revealed when the provisions are read in the context of other textual provisions…” of the statute; or (ii) where the purpose of the statute would be “wholly frustrated” if the power were found not to exist. In considering those questions it is necessary to consider the mischief to which the statutory provision was directed. The court in E.K. then resorted to a case called Friends of the Oldman River Society v. Canada , a Supreme Court of Canada decision wherein Finch, J.A., as he then was, expressed the principle in the following terms in Ewachniuk v.

Law Society of British Columbia , a 1998 decision in B.C. Mr. Justice Finch said: …compelling reasons must be demonstrated before one can say that words are to be read into a statute by necessary implication. In Bell Canada it was said that the courts should avoid "sterilizing" powers expressly granted by an overly technical

interpretation of the statute. In Alberta Government Telephones it was said that the meaning of the statutory language could be read broadly to avoid a statutory

interpretation that would "wholly frustrate" the purpose of the statute, or would render it "absurd". And in Oldman River the Court said that the test of necessary implication would be met where one was "irresistibly drawn to that conclusion through logical inference". The common themes of these three judgments are that courts should be slow to infer a legislative intention which has not been expressed, but

that they may do so where the expressed statutory purpose would be defeated by failure to draw the inference. [ 15 ] There are some significant differences between the E.K. decision and the application before me, and so some of the principles upon which the applicant relies are not helpful to me here.

In particular, the court found that the power to vary intermittent sentences was "conferred by necessary implication by s. 732." [ 16 ] Section 732(2) in particular provides for variation of intermittent sentences on application by an offender, and s. 732.2(3) specifically provides for variation of a probation order on application by an offender, probation officer or prosecutor. So in that case, the Provincial Court judge was not relying on implied jurisdiction, but on his

interpretation of a statutory jurisdiction that was set out in the Criminal Code . [ 17 ] There are some significant differences between R. v.

Whittle , 2005 BCPC 151 and the application before me as well, insofar as that application dealt with a procedural issue when litigation was ongoing which, in my view, is more in the nature of an application for judicial interim release, if we were speaking about a person rather than an animal, than it is an application to vary a final court order. [ 18 ] I am not persuaded that the compliance provisions of the order in this case confer jurisdiction on me to review those compliance provisions for reasonableness, as the applicant would seek, when there has been a material change in the circumstances of the offender. [ 19 ] I agree with the City of Surrey that this court has a very limited jurisdiction to vary its own orders and that the circumstances of this case do not engage that limited jurisdiction.

For example, there was no slip in drawing any order up, and none is alleged. For example, there is no error in expressing the manifest intention of the court, and none is alleged. [ 20 ] I do not find R. v. C.D.B. , 2013 BCSC 2440 , particularly helpful either, insofar as Mr. Justice Gow was dealing with a clear error in the imposition of the order he made, for which the proper remedy is an appeal to a higher court. Nevertheless, some of the principles are relevant and guide my decision.

They are set out in paragraph 9 of the City's written submissions. [ 21 ] I appreciate that the paragraph in its full context refers to the remedy of an appeal, which is apparently not available to the applicant here, but some of the other principles as they relate to the need for some finality in judgments are material nonetheless. [ 22 ] I will quote from paragraph 9 of the City’s argument, because the City has set it out as articulately, or perhaps more so, than I could at this stage.

Paragraph 9 of the argument says: Justice Ball ultimately concluded that he did not have inherent jurisdiction to vary the order in the circumstances, despite the clear error he made. In reaching this conclusion, he indicates his agreement with the following comments of Justice Nakatsuru in the Ontario case of R. v. J.E. , a similar case concerning an erroneous SOIRA order, and Mr. or Ms. Justice Nakatsuru said the following: Our judicial system depends upon the finality of judgments and the integrity of the appellant process.

To permit a judge to correct an error made in his or her decision on the basis that it was always the judge's intention to follow the law would be a slippery slope with no end. No judge intends to err. Every judge diligently tries to do right in each case. On occasion, we endure sleepless nights for our efforts, but we are all human and therefore we fail sometimes. When a judge fails, his or her decision should speak for itself. The parties in the appellant court should know the foundation upon which the appeal is being launched.

To permit an overly liberal definition of the jurisdiction of a trial judge in terms of the doctrine of functus officio would gelatinize that which should be firm. It would invite uncertainty and disorder in what should be a simple, straightforward and hierarchical process of appellant correction. The history of this case has been an example. The matter has returned before me a number of times in order to correct the duration of the SOIRA order.

If the same is permitted each time a party is dissatisfied with an aspect of a judge's final decision, there would be no end to the trial litigation and no beginning to the appeal. [ 23 ] I cite that paragraph not so much, as I said, for the reference to the appeal process, but in support of the need for finality in decisions, and in the circumstances, I find that it speaks to my ability to exercise any jurisdiction, implied or otherwise, with respect to Judicial Justice Blackstone's order. [ 24 ] I agree further with the City with respect to the floodgates argument, as set out in paragraph number 11 of their written submissions, wherein the City said: In the present case, it is even clearer that it would be inappropriate for this court to vary the order than in the cases discussed above.

There is nothing before the court that would entitle it to conclude that there was a slip in drawing up the order, and indeed no slip is alleged, or that the order failed to express the manifest intention of the court, and indeed no such failure is alleged. If this court is to grant the application to vary the order, it would be opening the door to the very outcome that Justice Nakatsuru warned against. Orders made under s. 263.1 of the Community Charter are commonly sought by municipalities to obtain compliance with the bylaws.

If the court retains jurisdiction to vary such orders months after their issuance, this court could be inundated with accused applying to extend court–ordered deadlines for compliance with validly enacted municipal bylaws. [ 25 ] I find that I do not have implied jurisdiction to vary Judicial Justice Blackstone's order. [ 26 ] If I am wrong about the jurisdictional issue, while I am sympathetic to the problems that face Natt Development Ltd. and its directors with respect to all of the delays occasioned, perhaps in part by City decisions, and certainly in part by the global pandemic that has plagued us all for longer than we ever expected, I am nevertheless not persuaded that this is a case where the relief should be granted. [ 27 ] Based on the affidavit material before me, and based on Mr.

Bhatia's recent testimony, the applicants present as sophisticated, successful, experienced business people who made a considered decision to purchase property, knowing that there was a temporary use permit only and knowing that rezoning applications would be required. [ 28 ] The circumstances conveyed to the sentencing judge in support of the joint submission on sentence are materially the same as

now, as set out in the City's written argument at paragraph number 4, subparagraphs (

b) and (

c) in particular. I will not go through them again. [ 29 ] I have also taken into consideration that the transcript on sentencing that is before me establishes that the applicants were non– compliant for some time before charges were laid, even though they were issued compliance notices by a bylaw officer, and it appears that they are still not in full compliance. [ 30 ] For all of those reasons, I find that it is not within my power to vary Judicial Justice Blackstone's order. (RULING RE APPLICATION TO VARY ORDER CONCLUDED)