R. v. Clemmer, 2016 ONCJ 87

Information No.: 13-0060 February 9, 2016 at Sarnia, Ontario CITATION: R. v. Clemmer , 2016 ONCJ 87 ONTARIO COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Appellant -and- FREDERICK CLEMMER Respondent REASONS FOR DECISION ON APPEAL On appeal from the acquittals entered by Her Worship Justice of the Peace A. Hampson of the Ontario Court of Justice, on April 22, 2014. S. Dunsmuir – counsel for Ontario Ministry of Natural Resources & Forestry J. Nicholson – counsel for F.

Clemmer GEORGE J.C.: ISSUE [ 1 ] The issue raised on this appeal is whether the presiding Justice of the Peace erred in finding that the principle of ‘acquired rights’ can block the application of provincial law. Asked another way, can the concept of 'acquired rights' operate as a defence to a provincial regulatory charge?

FACTS - OVERVIEW [ 2 ] At trial the Respondent was found not guilty of all five counts contained within the provincial offences Information. The Crown appeals only against the acquittals on counts two and five. Count two charged that the Respondent, on November 26, 2011, operated an all-terrain vehicle (ATV) in the Pinery Provincial Park (park) without written authorization, contrary to

section 34 of Ontario Regulation 347/07 under the Provincial Parks and Conservation Reserves Act (PPCRA). Count five charged the same offence, alleging it occurred on June 29, 2012. [ 3 ] The Respondent owns a cottage located on land which borders the park. Other cottages are located in that same area. The land that abuts the cottages was given to the Province of Ontario in 1978 and is subject to a 33 foot right-of-way in favour of the cottage owners.

This easement pre-dates the 1978 gift. [ 4 ] At trial, the right-of-way was found to be “unrestricted” in that it didn’t specifically limit uses. [ 5 ] The evidence established that vehicles have been routinely used since 1992 by some of the owners. Some don’t use them, and they represent what could be described as the anti-ATV lobby. [ 6 ] In January 2007 the Ministry of Natural Resources (MNR) confirmed in writing that the easement could be used to "accommodate either pedestrian, vehicular or other means of access".

This was after the PPCRA’s enactment, but before it came into force. [ 7 ] On November 26, 2011 and June 29, 2012 the Respondent was observed operating an ATV in the park (on a portion of the right- of-way), in clear violation of the regulation. This conduct is not disputed. [ 8 ] The presiding Justice of the Peace determined that the fact no direct notice was given to the Respondent, or other cottage owners, that their use of the right-of-way may be affected, is irrelevant and doesn’t impact the Act’s validity. She was correct, although there is no specific challenge to the legislation itself.

The PPCRA is valid legislation that regulates activities in provincial parks, including the right-of-way in question. [ 9 ] There was evidence that the Respondent had been, for several years, engaging in efforts to ensure the right-of-way was suitable for vehicle access. He was issued a stop work order in 2008, which he didn’t heed. [ 10 ] In February 2010 the Respondent was sent a letter stating that the park could not approve trail construction within the right-of- way.

It read, in part, as follows: The existing right-of-way that is the subject of your request is within the Ausable Lowlands nature reserve zone (NR4) as outlined in the Pinery Provincial Park Management Plan (1986). This area is made up of a provincially significant complex of communities that includes the highest actively forming dunes in the park. The quality of the site is likely due, in part, to the remoteness of the site in the park and the lack of motorized access to the area. [ 11 ] The Respondent relied then, and continues to rely upon the letter he received from MNR in January 2007, mentioned above.

That correspondence reads, in part, as follows: The portion of the right-of-way abutting private property is 10.06 meters (33 feet) wide and runs parallel to the hydro line. A legal opinion was obtained by Ontario Parks on December 14, 2006. It was established that there is no restoration on the means of ingress or egress along the right-of-way. The right-of-way can be reasonably maintained (at the sole expense of the affected property owners) to accommodate pedestrian, vehicular or other means of access. The right-of-way continues to ensure on title and cannot be extinguished by lack of use or maintenance.

Similarly, the absence of vehicular use does not exclude use along the right-of-way over time. [ 12 ] It is not disputed that the right-of-way is a vital access route for the cottage owners. It is not disputed that the right-of-way is

seemingly unrestricted in scope, in that it’s silent on the use of motorized vehicles. The right of way in question measures 33 feet (10.06 meters) in width and is therefore wide enough to accommodate vehicular traffic. [ 13 ] The trial record reveals that the right-of-way had been used by the cottage owners in several different ways, including walking, transporting of items in wheelbarrows, and until these charges, the use of ATV's.

Service vehicles use the right-of-way from time to time - such as hydro crews, and gas and phone employees - but only after receiving permission from park officials upon disclosing the timing of the visit and nature of their work. [ 14 ] There was some question as to whether the cottage owners had received notice of the new legislation (and regulations) respecting ATV use. There was indeed no direct communication from the government, to the owners, outlining the impact of the PPCRA in the law’s early stages.

It is clear that the Respondent became aware that he did not have a standing authorization to use an ATV, perhaps as early as 2008; and certainly no later than 2010. [ 15 ] There was a correspondence exchange, beginning in 2007, that requires some scrutiny.

In 2007, the park superintendent wrote to all cottage owners setting out his position that there were no restrictions on the right-of-way, confirming it could be maintained at the owners' expense, and that the Provincial Parks Act did not override it. [ 16 ] In 2010 John Salo, the Southwest Zone Manager for MNR, denied a work permit to construct a road along the right-of-way due to the fact the area fell within the Ausable Lowlands Nature Reserve Zone, noting it would be inconsistent with the park’s management plan.

This letter was an attempt to address issues raised in meetings wherein maintenance of the right-of-way had been discussed. Mr. Salo wrote that: "access to private cottages via the…right-of-way… may continue using non-motorized means of travel", an obvious divergence from MNR’s earlier position. [ 17 ] There were further written exchanges, where each party's

interpretation of the right-of-way and its acceptable uses were set out. Mr. Salo’s 2010 letter confirms the existence of the right-of-way, but states that "while the PPCRA may not override the legal use of the right-of-way, there still must be compliance with the Act and the Regulations when using and maintaining It”. In a letter dated September 10, 2010, the Respondent's lawyer disputes this view suggesting the 2007 direction and opinion is the correct one. Mr. Salo replies, once again insisting on compliance. [ 18 ] Upon review of the trial record, two things become apparent.

First, there has now been, for some time, a dispute as to what governs the use of the right-of-way. And second, notwithstanding that, the Respondent knew full well what the Ministry’s view was, at least as at 2010, which was clearly different than its earlier position. [ 19 ] John Salo testified indicating he was not happy with the 2007 letter, but that it was "probably true". He spoke of his understanding of the right-of-way and how the historical means of access to the lots was pedestrian.

He was not the zone manager in 2007 when the PPCRA came into effect and was not personally aware of efforts made to directly inform the cottagers of its impact and meaning, at its onset. POSITIONS OF PARTIES ON APPEAL Appellant (Crown) [ 20 ] It seems to me that at the heart of this appeal, at least from the Crown’s perspective, are the potential consequences of the precedent set by the trial decision. It contends that should it stand, it would effectively endorse the view that rights-of-way are not subject to the application of provincial law, unless explicitly stated.

This, it argues, has far reaching impact potentially affecting other statutes such as, for example, the Endangered Species Act. [ 21 ] Its position is the province can regulate property rights, including rights-of-way, under section 92(13) of the Constitution Act, 1867 . It contends that the PPCRA is a land use regulation that is "unequivocal" in its application. It argues that the property rights addressed in the PPCRA are those that the Act does not intend to curtail. Put otherwise is to say that rights-of-way are not addressed in the PPCRA, therefore they are not meant to be exempt from it.

Regardless, ‘acquired rights’ cannot operate as a defence. That is, if one wants to challenge the legislation, then bring an application in the Superior Court seeking an injunction, declaration or other remedy. Or file suit and request compensation. But it is not a defence.

Respondent [ 22 ] From the Respondent's perspective, the issue is that of 'acquired rights'. He argues that even though the easement is silent, the right to use it in the way he had been, was acquired over time, and with the knowledge and consent of park officials. And that once the right was established, it represents an interest in land, one which must be terminated expressly.

This essentially was an expropriation without compensation. [ 23 ] He asserts that the trial court was correct to affirm his continuing right to use an ATV on the right-of-way. [ 24 ] As to expropriation, it is indeed well established that, should the law surrounding expropriations apply, it would require specific mention of the right in question, and of course fair compensation for any loss. [ 25 ] The Respondent references case law, which supports the notion that newly enacted statutes are presumed not to interfere with established rights unless it is clear and unequivocal.

In addition, he argues that the court properly considered the defence of 'acquired rights' because to do otherwise would be inconsistent with the heightened importance and significance our society, and system of law, places on private property rights. LAW [ 26 ] The PPCRA came into force in 2007. Its primary focus is the environment.

The purpose of the Act is "to permanently protect a system of provincial parks and conservation reserves that includes ecosystems that are representative of all of Ontario's natural regions, protects environmentally significant elements of Ontario's natural and cultural heritage, maintains biodiversity and provides opportunities for compatible, ecologically sustainable recreation.” [ 27 ] The Act allows for the regulation of activities within a provincial park. Regulation 347/07 sets out some of the prohibitions, including

section 34 which provides that: No person shall operate an all-terrain vehicle in a provincial park except in an area operated by the superintendent for that purpose or in another area pursuant to a written authorization of the superintendent, which may be granted if the superintendent is of the opinion that operating the vehicle will not cause harm to the environment, impede the maintenance of ecological integrity or be a threat to public safety. [ 28 ] The two counts under review – two and five - are strict liability offences.

The trial court found, and no one disagrees, that the prosecution successfully established the actus reus of the offence. Typically, the only defence available in such cases, is that of due diligence. This is not what the defence advanced at trial. The Respondent did not contend he took all reasonable steps to avoid commission of the offence. He did not argue a reasonable belief in a mistaken set of facts.

He argued that the prosecution must prove, beyond a reasonable doubt, that the unrestricted right of way does not give him the right to use his ATV without written permission of the park superintendent. [ 29 ] At trial, it was held that the Crown had not established the latter beyond a reasonable doubt. [ 30 ] This is a question of law, and the standard of review is correctness. ASSESSMENT [ 31 ] I am not assessing the constitutionality of governmental actions, and can’t engage remedies such as the reading-down or reading-in of a statute. I can’t make a declaration.

I don’t have the authority to grant an injunction against enforcement of the regulation. Nor can I

enjoin the authorities to allow the Respondent and others who fall in the same category of ownership, a general and unfettered right touse an ATV. [32] It would be tempting to address this matter with the sole view of mitigating the rigour and strictness of the law (PPCRA andregulations), the operation of which has clearly limited the ways in which the Respondent can access his property. There is no doubt ithas made this more difficult.

If the goal were to simply strike the right balance between competing interests, I would (if I could) read into the legislation a specific reference to rights-of-way enjoyed by adjoining property owners. If I could, I suppose I might read in to thelegislation exceptions that alleviate the burden the regulation has on a private citizen.

I can see how one might want to encourage thepark authorities to grant ongoing permission for cottage owners to use ATV’s. [33] This was, however, the prosecution of a regulatory offence. [34] I fully appreciate the Respondent's position, which was stressed in argument time and again, which is property rights arefundamental. This is true. Private property rights are important. In fact, they are fundamental in a free and democratic society.

Andwithin this framework, the Respondent was right to attempt to draw the analogy between this case and the many cases which have dealtwith government infringement on personal property rights. Do those cases apply in this instance? [35] My task is to review the trial decision and ensure it adheres to a strict application of the law, fitting within the stricture of aregulatory prosecution. I must get it right. I must ensure that the trial court got it right.

This is very different from a review courtassessing a trial judge’s findings of fact, which would attract utmost deference. [36] With that in mind, I will focus on the strength of the Respondent's argument, which was to essentially equate this instance with an'acquired right' situation in municipal law. The question is, is the defence of a regulatory offence an equivalent to the ‘competing-rights’and ‘right-infringement’ cases relied upon, all of which were decided in a civil law context. [37] In GATX Corp. v. Hawker Siddeley Canada Inc., (ON SC), [1996] O.J. No. 1462 (Gen.

Div.), the court dealtwith a minority - majority shareholder dispute. The application evolved out of a right of first refusal attaching to a control block ofshares (a 55% interest held by one of the parties). It was a battle over who would acquire that block of shares. For our purposes notmuch turns on the facts, other than to consider whether the principles espoused therein apply here. [38] The Respondent asks me to focus on paragraph 97 of the court's opinion in GATX, where it states: A statute is presumed not to interfere with vested rights.

The text, Driedger on the Construction of Statutes, 3d ed. (Butterworths:Toronto: 1994), R. Sullivan ed., states, at p. 530: To deprive individuals of existing interests or expectations that have economic value is akin to expropriation without compensation,which has never been favoured by law. To worsen the position of individuals by changing the legal rules on which they relied inarranging their affairs is arbitrary and unfair. Where the application of new legislation creates special prejudice for some, or windfallsfor others, the burdens and benefits of the new law are not rationally or fairly distributed.

These effects may be hard on the individualsinvolved and they undermine the general security and stability of the law. For these reasons interference with vested rights is avoided inthe absence of a clear legislative directive.

Contractual rights are recognized as vested rights, and arise on the effective date of the contract…….although the purpose of subsection189(3) of the CBCA is to protect the shareholders by providing them with a say in matters that will lead to a fundamental change in thenature of the corporations business, I can find no "clear legislative directive “either from that purpose or in the Act as a whole that wouldjustify the deprivation of GATX's existing contractual rights and expectations by bringing about a transformation in those contractualrights which would itself fundamentally change the nature of what was bargained for.

Nor can I see any reasons, in the circumstances ofthis case, for sanctioning the operation of subsection 189(3) in a fashion that is tantamount to invalidating a pre-existing corporatecontract and to permitting Hawker Siddeley to use the provisions of the CBCA to avoid its contractual obligations with respect to thetransfer of its property. [39] Is the PPCRA, and specifically the regulation of ATV use, arbitrary and unfair? In oral submissions, counsel for the Respondent,when referring to the GATX decision, actually moved away from the position that this is an expropriation case, at least somewhat,

expounding that, based on GATX, it matters not whether the court found there was in fact an expropriation. He argued that the defence operates and depends upon the courts, albeit very subjective, determination of what is fair and what is not. The defence suggests there is an exemption from the regulation, as a result of two things - first, the prior use of the ATV on the right-of-way, and second the fact the Act's provisions do not amount to a clear legislative direction to infringe upon property rights. [ 40 ] The Respondent referenced Professional Institute of the Public Service of Canada et al. v.

Attorney General of Canada v. Attorney General of British Columbia [2012] 3 S.C.R. , a case which considered whether the government owed a fiduciary duty to pension plan members; specifically whether a constructive trust should be imposed over balances in Superannuation Accounts, and whether new legislation authorizing the government to debit actuarial surpluses in these accounts was valid. The question surrounded a piece of federal legislation, which changed the way in which Canada collected, managed and distributed contributions.

In dismissing Union claims, the court held it did not have a proprietary interest in the assets in question. [ 41 ] The purpose in filing this case, I take it, was to draw a distinction between the right in question there and the right that, the Respondent says, exists here. [ 42 ] Mineral Rights cases were referred to as well, in particular Her Majesty the Queen in right of British Columbia v. David Evans Tener and Gertrude Marina Tener [1985] 1 S.C.R. . This case, among others, stands for the proposition that land doesn't need to actually be taken for there to be an expropriation.

It also speaks to the applicability of legislation which has the effect of infringing upon established rights. [ 43 ] I do not see the relevance of this case to the one before me. It was a stated-case, brought in order to resolve the blanket denial of a government ministry's refusal to issue a permit that would allow the Respondents to exploit their mineral claims. It dealt squarely with the issue of compensation, and how and from where that right to compensation derives.

The determination the court was being asked to make, was whether in fact the Respondents were entitled to compensation. [ 44 ] I was referred to the Leiriao case - Alexandre Leiriao v. Municipal Corporation of the Town of Val-Belair [1991] 3 S.C.R. - which stresses the fundamental nature of property rights. On page 357 the court writes: Anglo-Canadian jurisprudence has traditionally recognized, as a fundamental freedom, the right of the individual to the enjoyment of property and the right not to be deprived thereof, or any interest therein, save by due process of law. To this right corresponds a principle of

interpretation: encroachments on the enjoyment of property should be interpreted rigorously and strictly. Rigorous

interpretation: conditions imposed by statute that limit the enjoyment of property must be respected strictly. Restrictive

interpretation: if a genuine problem in interpreting such legislation arises, the judge is justified in choosing the construction that limits the effect of the law and favours the enjoyment of property.

The principle is particularly relevant to expropriation legislation. [ 45 ] To accept the Respondent's argument, upholding the trial decision, I would have to agree that not only was there an expropriation of a property interest (without compensation) and that the remedy isn't simply compensation in a civil court, but, and this is important, that it operates as a defence to a quasi-criminal charge. [ 46 ] I would have to adopt the trial court's reasoning that there should be a preference for whatever specific and express property rights the Respondent might have, over the environmental objectives of the Act and its regulations. [ 47 ] This hinges on me accepting that the trial court was correct to apply the concept of 'acquired rights' to this context, allowing it succeed as a defence to a strict liability offence.

This is the ultimate question. Was the presiding Justice of the Peace right? [ 48 ] The 'acquired right' defence was indeed recognized by the Supreme Court of Canada in Robitaille Inc. v. Quebec (City) [2014] 1 S.C.R. , in the context of a municipal authority. Of particular importance is this passage, found at paragraph 36:

It was possible for the appellant (defendant) to avoid penal liability by proving the existence of acquired rights. [ 49 ] The Respondent contends that in applying Robitaille, the trial court got it right in that it was consistent with the private property right presumptions, and expropriation rules. [ 50 ] The Crown, on the other hand, stresses these points: -first, that this a strict liability offence. -second, that the facts are not in dispute. -third, that the Respondent did not advance the only defence that was available to him (due diligence). -and fourth, given the above, and given the regulatory scheme, the Respondent’s position isn’t a defence in law. [ 51 ] Its position is I should reject the argument that the concept of acquired rights, as it’s detailed in Robitaille, is transferable to a fact- set such as this.

It asks that the standard of correctness is met only by applying the law respecting strict liability offences. In other words, nothing in the Respondent’s behaviour could be taken as due diligence, and therefore a finding of guilt must follow. CONCLUSION [ 52 ] This is not an expropriation case. The Crown did not release the interest in the right-of-way. It regulated it. This is a critical distinction, and represents a threshold issue.

Should I be wrong, the proper remedy would be compensation, or perhaps injunctive relief. [ 53 ] The Justice of the Peace at trial erred in finding that the regulation of ATV use amounted to an expropriation. [ 54 ] Notwithstanding the above, was it correct to apply Robitaille? [ 55 ] In Robitaille, the municipality (City of Quebec) issued a statement of offence against a company for operating a commercial parking lot on its property, a use that violated a zoning by-law. The non-conforming use was acknowledged but the company argued the issue of promissory estoppel.

At trial, the company was convicted of the offence, a decision which was confirmed by the Supreme Court. [ 56 ] The important aspect of Robitaille, which clearly informed the trial outcome here, is Justice Wagner’s comments found at paragraph 35: It is important to recall that this case concerns a strict liability offence. Nothing in the words of art. 359 of By-law indicates that the legislature intended to create either an absolute liability offence or a mens rea offence.

This means that it is open to a defendant to raise a due diligence defence and to try to prove that all possible and reasonable precautions were taken to avoid committing the offence. There is no evidence with respect to such precautions in the case at bar, however. It was possible for the appellant to avoid penal liability by proving the existence of acquired rights. However, both the Municipal Court judge and the Superior Court judge found that the appellant had not discharged its burden of proof in this regard and therefore could not rely on this defence.

The Court of Appeal was right not to intervene on this point. The evidence adduced by the appellant concerning the use of the parking lot before June 18, 1979 was not sufficient to establish the existence of acquired rights. [ 57 ] In Canada extensive land use regulation is the norm. The PPCRA has a valid legislative purpose, with the public interest in mind. The Respondent’s ability to use the right-of-way was not extinguished; it was regulated. There is no basis upon which one can conclude, nor is there legal authority to suggest, that a right-of-way is immune to provincial legislation.

[58] Turning specifically to Robitaille, it was a case dealing with promissory estoppel, in the context of a defendant that owned andoperated a commercial parking lot that was a non-conforming use under a zoning by-law. [59] The proper jurisprudential view is that the doctrine of ‘acquired rights’ is a municipal law concept, one that is, even if applicable,not inviolable. [60] Neither legal non-conforming use, nor acquired-right concepts, are stand-alone legal principles. Both originate, and havegerminated, within the evolution of municipal law.

There is no authority to suggest this principle applies in an instance such as this. [61] This is confirmed in both Saint-Romuald (City) v. Olivier [2001] 2 S.C.R., and United Aggregates Ltd. V. Niagara Escarpment Commission (ON CA), 133 D.L.R. (4th) 362. Saint-Romuald appears to confine the doctrine of ‘acquired rights’ to theQuebec Civil Code.

At paragraph 1, the majority writes that: The Court’s objective on this appeal is to find the proper balance between an individual’s right to the continued use and enjoyment of hisor her property and the power of the community, expressed through the local municipality, to enhance, by changing the land useregulations, the amenities of surrounding and other affected landowners. As the case arises in Quebec, the specific issue raised is thelimitation of previously acquired rights under the Civil Code.

However, as this is a public law matter, the principles of land useregulation applicable, in the common law provinces concerning legal non-conforming uses, are also relevant. [62] In a provincial law context, the Ontario Court of Appeal in the United Aggregates case, held that: Although the language of the statute seems to be directed to “new” developments, it is important to note that the Act does not exemptpre-existing uses from its operation. All “developments” that are undertaken are seemingly caught unless specifically exempted byregulations passed pursuant to the Act.

Regulations have been passed in this respect and they do not serve to exempt UAL’s quarry. Therefore, what does “development” mean within the meaning of this Act? ……what about a continuing operation such as UAL’s quarry when such a project was commenced prior to the enactment of thelegislation and may continue for many years in the future? Every creeping step to excavate new ground cannot be a development. Onthe other hand, it seems unreasonable to think that the legislature intended that the quarry continue in operation indefinitely, free ofwhatever controls the Act imposed over and above all other Acts. Such an

interpretation would amount to reading in a legal non-conforming use provision which is not there. [63] This, in my view, settles the issue. Were there to be an exemption within the PPCRA and or its regulations, it would have to beexpressly and unambiguously set out. Here it was not. ORDER [64] On the evidence presented at trial, the correct conclusion was that the Respondent was guilty of the regulatory offences for whichhe was charged. There was no exception for his pre-existing uses. His ‘rights’ did not, and do not, remain frozen in time.

He is subjectto provincial laws which apply to the right-of-way, as are other cottage owners who may have a similar interest. [65] The Act, and its regulations, is not arbitrary. It has a valid legislative purpose, and contains clear guidelines as to when, and how,for example, an ATV can be used. [66] The appeal is therefore allowed. [67] This is an unavoidable conclusion, consistent not only with the rules applicable to strict liability offences, but also with general

rules of construction and statutory

interpretation.

An Act must be interpreted as being remedial and shall be given such fair, large and liberal

interpretation as best ensures the attainment of its objects. [ 68 ] Given the nature of the appeal, and because no factual issues need to be resolved, convictions will be registered against the Respondent, on counts two and five on Information 130060. February 9, 2016 ________________________ Date Justice Jonathon C. George