R. v. R.W. Tomlinson Limited, 2011 ONCJ 478

Court File No.: Citation: R. v. R.W. Tomlinson Limited , 2011 ONCJ 478 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN as represented by the Minister of the Environment in right of the Province of Ontario Respondent -and- R.W. TOMLINSON LIMITED Appellant Before Justice H.L. Fraser Heard on August 9, 2011 Appeal Decision released on August 23, 2011 P. McCulloch ........................................... counsel for the Respondent Her Majesty the Queen J.B. McMeekin.......................................... counsel for the Appellant R.W.

Tomlinson Limited FRASER, J.: APPEAL DECISION [ 1 ] On January 13, 2011, the Appellant, R. W. Tomlinson Limited was found guilty of offences contrary to sections 53(1) and (5) of the Ontario Water Resources Act by His Worship Justice of the Peace, W.

Stewart. s.53 (1) of the said Act reads as follows: (1)…no person shall establish, alter, extend or replace new or existing sewage works except under and in accordance with an approval granted by a Director, (5)…no person shall use or operate sewage works for which an approval is required under subsection (1) unless the required approval has been granted and complied with. [ 2 ] The Appellant was also charged with a violation of s. 107(3) of the Ontario Water Resources Act. s.107(3) of the said Act states that: Every person that contravenes a term or condition of a licence, permit or approval made under this Act is guilty of an offence. [ 3 ] Notwithstanding the submissions of both the Appellant and Respondent that, on the basis of the rule against multiple convictions, the third count should be stayed if there was a finding of guilt on the first two counts, the trial Justice acquitted the Appellant of having breached section 107(3). [ 4 ] The parties filed an Agreed Statement of Facts at trial, and given that the remedy sought by the Appellant is a new trial, I need not get into the facts presented to the learned Justice of the Peace at trial.

[5] In the argument presented at Trial, the Appellant made four submissions:

a) Due to the rule against multiple convictions, it was open to the Court to convict on Counts 1 and 2, or 3, but not on all threecounts, or on count 3 in combination with Counts 1 or 2;

b) A validly issued and operation

section 34 permit was sufficient regulatory approval for the wash ponds and there was norequirement for additional

section 53 regulatory approval;

c) In the alternative to (b), the Appellant’s mistaken belief that the wash ponds at Stittsville were closed loop and thereforenot subject to a

section 53 approval requirement was, in all the circumstances, reasonable and therefore a full defence to all three counts;and,

d) In the alternative to (c), the Appellant’s mistaken belief that

section 53 did not apply to the wash ponds satisfied therequirements of the defence of officially induced error requiring the acquittal of the Appellant. [6] During its submissions, the Appellant re-stated its position that it was relying on the defence of reasonable mistake offact and, only in the alternative, the defence of officially induced error. The majority of its submissions related to the contradictionbetween the evidence of Ms. MacDonald and Mr. Tovilla and how such apparent contradiction supported the reasonable mistake of factdefence.

Officially induced error was only mentioned by Appellant’s counsel in the alternative to the defence of reasonable mistake offact. [7] In his brief 4 page Reasons for Judgement, Justice Stewart summarized the three counts; referred to and summarizedvery briefly the defence of officially induced error, and concluded: “After considering the totality of the evidence presented, this Court is satisfied that the offence did occur, and that the defence ofofficially-induced error does not meet the exception.

Consequently, a conviction is registered on count number 1; also, without requiringprior approval for a sewage works, a conviction is registered on count number 2. The Court has a doubt as to the element of the offenceon count number 3, and according to law, that doubt shall go to the defence. Count number 3 is dismissed.” ISSUES ON APPEAL [8] There are two issues on this appeal:

(1) Did the learned Justice of the Peace err in law by not providing sufficient reasons for his decision to convict.

(2) In convicting the Appellant on counts 1 and 2, but acquitting the Appellant on count 3, did the learned Justice of the Peace err inlaw by rendering inconsistent verdicts. [9] The Appellant submits that Justice Stewart made no mention of the Appellant’s first submission: that the permit to takewater issued for the Stittsville Quarry was sufficient regulatory licence to construct and operate the wash ponds as observed by Ms.MacDonald. [10] The Appellant further submits that Justice Stewart made no mention of its second submission: that in light of thecontradictory evidence of Ms. MacDonald and Mr.

Tovilla, the Appellant was relying on the defence of reasonable mistake of fact. [11] The Appellant also submits that the learned Justice failed to summarize the evidence of the two Crown witnesses and theevidence of the two witnesses called by the Appellant, nor it is submitted, did he resolve the conflict in the evidence of the two Crownwitnesses as to whether

section 53 applied to the reconfigured wash ponds. THE LAW [12] An appeal based on insufficient reasons will only be allowed where the trial Judge’s reasons are so deficient that theyforeclose meaningful appellate review. R. v. Sheppard, 2002 SCC 26 , [2002] 1 S.C.R. 869, at para. 28 “Reasons acquire a particular importance when a trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue....” Sheppard, supra, at para. 55 and R. v.

D.T.G. [2011] ONCA 40, at para. 20 [13] I find that although the learned Justice concluded that there were breaches of subsections 53(1) and 53(5) of the OntarioWater Resources Act, his reasons do not disclose how he came to that conclusion. There is nothing said within those reasons that wouldpermit this Court to review the decision of the learned Justice. It is also not clear on reviewing the reasons for Judgment whether Justice

Stewart had concluded that the Appellant’s mistake was one of law and not of fact. [14] The test for inconsistent verdicts was set out by the Court of Appeal in R. v. McLaughlin: “The fact that verdicts may be inconsistent does not mean that in all cases the Court of Appeal ex necessitate must quash the convictionor grant a new trial.

If the verdicts are violently at odds and the same basic ingredients are common to both charges then the convictionwill be quashed but the onus is on the appellant to show that no reasonable jury who had applied their minds to the evidence could havearrived at that conclusion.” R. v. McLaughlin (ON CA), 15 C.C.C. (2d) 562 at para. 5 [15] Other than finding that he had a reasonable doubt on the actus reus for the third count, the learned Justice provided noreasons for this part of his decision.

This is particularly puzzling when as the Appellant submits, the evidence called at trial was genericto all three counts before the court. [16] Both trial counsel had agreed that on the basis of the rule against multiple convictions, it was open to the Justice toconvict on counts 1 and 2 or 3, but not on all three counts. Reference was made to the rule against multiple convictions whenAppellant’s counsel cited Kienapple during the trial. Kienapple v.

R. (SCC), [1975] 1 S.C.R. 729 [17] Counsel for the Respondent submits that it was a simply a matter of semantics, when the learned Justice stated that hehad a doubt and acquitted on count #3, rather than stating that the charge would be stayed instead of dismissed. That argument is notsupported by the trial record.

The learned Justice states briefly, but unequivocally that he has a doubt as the element of the offence oncount number 3, and that doubt would go to [the benefit of] the defence. [18] Absent reasons, it is not possible to determine whether the Justice understood the basis and the application of the rule inKienapple, or if he believed that the evidence presented by the Crown somehow fell short in relation to count #3. [19] In any event the failure to provide adequate reasons is an error of law as is the inconsistent verdict.

As a result, theappeal is granted and the matter will be sent back for a new trial in the Ontario Court of Justice. ________________________________ Justice H.L. Fraser