Durham (Regional Municipality) v. Lucas, 2019 ONCJ 904

ONTARIO COURT OF JUSTICE CITATION: Durham (Regional Municipality) v. Lucas , 2019 ONCJ 904 DATE: 2019 10 30 COURT FILE No.: 2860 999 18 1239 00 BETWEEN: Regional Municipality of Durham — AND — Ronald Lucas Before Justice of the Peace Kevin J.A. Hunter Heard on May 9 & September 10, 2019 Reasons for Judgment released on October 30, 2019 R. BISHOP.................................................................................................. for the Prosecution D.

GOSBEE………................................................................................for the Defendant JUSTICE OF THE PEACE HUNTER: [ 1 ] Ronald Lucas stands charged with failing to comply with a Property Standards Order (the Order) on May 17, 2018, contrary to s. 36(1) (

b) of the Building Code Act , 1992, S.O. 1992, c. 23 . [ 2 ] The charging

section reads: 36

(1) A person is guilty of an offence if the person, (

a) knowingly furnishes false information in any application under this Act , in any certificate required to be issued or in any statement or return required to be furnished under this Act or the regulations; (

b) fails to comply with an order, direction or other requirement made under this Act ; or (

c) contravenes this Act , the regulations or by-law passed under

section 7 [ 3 ] Mr. Lucas pleaded not guilty and a trial occurred before me on May 9 and September 10, 2019. The defendant applied for relief under ss. 7 , 8 , 24(1) and 24(2) of the Canadian Charter of Rights and Freedoms ( Charter ). Since counsel for Mr. Lucas concedes that the prosecution has proven the substantive charge, my decision on the Charter applications is dispositive. The Evidence Ryan Janes [ 4 ] Ryan Janes, a municipal by-law enforcement officer for the City of Pickering, was the only prosecution witness. He testified that in July of 2016, he received a property standards complaint concerning the Defendant’s residential property at 1851 Appleview Rd,

Pickering, Durham. [ 5 ] While conducting a site inspection on July 28, 2016, Mr. Janes observed a residence, a garage, and a shed on the property. He also observed four inoperative vehicles, garbage, debris, and refuse strewn about the yard. [ 6 ] On August 10, 2016, Mr.

Janes sent a letter to the defendant advising him of the complaint, the results of the site inspection, and a direction to bring the property into compliance with the Property Standards By-law [1] by September 16, 2016. [ 7 ] After this direction, the defendant requested and was granted several compliance extensions, for various reasons, all the while maintaining contact with Mr. Janes. Ultimately, on March 7, 2017, Mr. Janes re-attended the property and observed its condition to be relatively unchanged.

This caused him to issue an Order to the Defendant on March 24, 2017. [2] [ 8 ] The Order directed the Defendant as follows: It is hereby ordered that the violations as set out in

Schedule ‘A’ be remedied and the property brought into a condition of compliance with the prescribed standards as set out in the Property Standards By-Law 5943/02 on or before June 30 th , 2017. [ 9 ]

Schedule ‘A’ directed the Defendant to take more specific action. For each direction, the appropriate by-law

section was referenced. The relevant excerpts are:

(1) All garbage and debris in the front, side and rear yards to be removed and cleaned up [Part III,

Section 4: All yards shall be kept clean and free of rubbish, garbage, litter or other debris and free from objects or conditions that may create an unsafe condition]

(4) All deretict [ sic ] or inoperative vehicles to be brought into an operative state with valid license plates and sticker or to be removed from the property [Part IV,

Section 82: Any vehicles, including a trailer or boat, or mechanical equipment, which is in a wrecked, discarded, dismantled or abandoned condition shall not be parked, stored or left in a yard.] [3] [ 10 ] The compliance date for the Order was June 30, 2017. [ 11 ] For reasons which are not clear, Mr. Janes subsequently extended the compliance date to April 30, 2018. The defendant then requested yet another extension and was granted a new compliance date of May 17, 2018. [ 12 ] On that day, Mr. Janes re-attended the property for another site inspection.

He observed the property to be fenced off with signs warning against entry. Mr. Janes entered and observed numerous vehicles in the yard. He described the vehicles as inoperative, dismantled vehicles which were rusted, weathered, and missing parts. Some had flat tires. He also observed various other objects strewn about the side and rear yards including vehicle parts, numerous containers, shingles, tiles, flag poles, and an empty fish tank. Mr. Janes took photographs, which were entered as exhibits at trial. As a result of this site inspection, Mr.

Janes charged the defendant with failing to comply with the Order. [ 13 ] On June 20, 2018, Mr. Janes re-attended the property with the intention of removing property from the yard under authority of the by-law. He attended with several other by-law and police officers, who were present to keep the peace. With the assistance of city contractors, property was removed from the yard. This property included ceramic tiles, roof shingles, pails containing liquids, various vehicles, and vehicle parts. [ 14 ] In cross-examination, Mr.

Janes did not recall hearing the police threaten the defendant with arrest if he interfered, however, he admitted that it was possible. Ronald Lucas [ 15 ] In a Charter voir dire , Mr. Lucas testified that before the Order was issued, he had several interactions with Mr. Janes about the state of his property and what was required to being it into compliance. Mr. Lucas stated that every time they had contact, Mr.

Janes would add new items to a growing list of required actions. [ 16 ] When the by-law and police officers attended his residence to remove property from the yard on June 20, 2018, the defendant was not expecting them. Mr. Lucas scrambled to move various items of property from the yard into his shed or house. He was given the opportunity to do so by the attending officers. [ 17 ] When the contractor’s tow trucks arrived to remove the vehicles, Mr. Lucas pleaded with Mr. Janes to allow him to remove the vehicles himself. After his request was denied, Mr.

Lucas desperately tried to block the contractors’ access by parking his truck at the end of his driveway. Mr. Lucas was directed by police to move his truck, which he did. He was then told by the police, twice, that he would be arrested if he further tried to interfere with the property removal. Issue #1 Was the defendant’s s. 7 Charter right violated when the police threatened to arrest him? If so, should a stay of proceedings be ordered under s. 24(1) ?

The Law Charter s. 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [ 18 ] The purpose of s. 7 is to protect the "core of what it means to be an autonomous human being blessed with dignity and independence in matters that can properly be characterized as fundamentally or inherently personal.” [4] This includes not only physical restraint, but also a broader application to the human experience. Analysis [ 19 ] The defendant concedes that he was not physically restrained. However, Mr.

Lucas argues that his broader autonomy was infringed upon when law enforcement officials threated to arrest him if he interfered with the lawful removal of property from his own yard. [ 20 ] I accept Mr. Lucas’ testimony that he was threatened with arrest.

Given his reaction to the unexpected arrival of law enforcement officers at his home and his attempt to block the property removal, the threat of arrest isn’t surprising. [ 21 ] By-law officers are peace officers by virtue of s. 2 of the Criminal Code , and s. 129 makes it a criminal offence to obstruct a peace officer or anyone assisting them in the lawful execution of their duties.

In my view, a police officer warning someone that they will be arrested if they commit a crime falls squarely into Sir Robert Peel’s first principle of crime prevention, [5] and accords harmoniously with the principles of fundamental justice. [ 22 ] I find that there is no infringement on Mr. Lucas’ liberty or security of the person rights and the s. 7 application is dismissed. Issue #2 Was the defendant’s s. 8 Charter right violated by the removal of items not specifically articulated in the Order? If so, should the exclusion of evidence be ordered under s. 24(2) ? The Law Charter s. 8.

Everyone has the right to be secure against unreasonable search or seizure. [ 23 ] To be reasonable, a seizure must be ( 1) authorized by law; (2) the law itself is reasonable; and (3) the manner in which the search is carried out is reasonable. [6] [ 24 ] Because the seizure was warrantless, the onus is on the prosecution to establish that the seizure was reasonable. Building Code Act , 1992, S.O. 1992, c. 23 (The Act ) 15.2

(2) An officer who finds that a property does not conform with any of the standards prescribed in a by-law passed under

section 15.1 may make an order, (

a) stating the municipal address or the legal description of the property; (

b) giving reasonable particulars of the repairs to be made or stating that the site is to be cleared of all buildings, structures, debris or refuse and left in a graded and levelled condition;

(

c) indicating the time for complying with the terms and conditions of the order and giving notice that, if the repair or clearance is notcarried out within that time, the municipality may carry out the repair or clearance at the owner’s expense; and (

d) indicating the final date for giving notice of appeal from the order. 15.4

(1) If an order of an officer under

section 15.2 (2) is not complied with in accordance with the order as deemed confirmed or asconfirmed or modified by the committee or a judge, the municipality may cause the property to be repaired or demolished accordingly. 15.1 (1) “repair” includes the provision of facilities, the making of additions or alterations or the taking of any other action that may berequired to ensure that a property conforms with the standards established in a by-law passed under this section. The Corporation of the City of Pickering By-Law Number 5943/02 (Property Standards By-law)

Part III, s. 4. All yards shall be kept clean and free of rubbish, garbage, litter or other debris and free from objects or conditions thatmay create an unsafe condition.

Part IV, s. 82. Any vehicles, including a trailer or boat, or mechanical equipment, which is in a wrecked, discarded, dismantled orabandoned condition shall not be parked, stored or left in a yard. Analysis [25] Mr. Lucas argues that his s. 8 right was violated because the seizure of his property was unreasonable.

The argument continuesthat since items were removed from the defendant’s yard which went beyond those articulated in the Order, the seizure was notauthorized by law. [26] Under authority of s. 15.4 (1) of the Act, if an Order issued to a defendant under s. 15.2 (2) is not complied with, themunicipality may cause the property to be repaired or demolished accordingly. Repair is a defined term in s. 15.1 (1) and includes thetaking of any action to bring the property into compliance with the by-law. [27] The

section does not explicitly express that the repairs be limited to those designed to remedy the issues identified in the Order. However, the use of the word “accordingly” at the end of s. 15.4 (1) of the Act contextualizes the actions available to the municipality. In my view, the actions available to a municipality to repair a property must be connected to the matters identified in the Order. Anyother

interpretation offends the principle of due notice and the legal requirements of s. 15.2 (2) (b). [28] The Order directed the defendant to remedy the violations specified in an attached schedule.

Schedule ‘A’ referred to actions tobe taken vis-à-vis vehicles, garbage, and debris in the yard. While “garbage” is defined in the Act, “debris” is not. “Debris” can refer to“something discarded” and is synonymous with junk, refuse, and scrap.[7] [29] Given both the variety and nature of the items strewn about the defendant’s property which I observed in the exhibitphotographs, it is difficult to imagine an officer, writing the Order in plain language, describing the offending items more appropriately.

In my view, the items observed on and seized from the defendant’s property can reasonably described as “debris,” connecting themsquarely to the Order. [30] I find that the prosecution has demonstrated that the seizure was reasonable as it was authorized by law under s. 15.4 (1) of theAct. There was no infringement on Mr. Lucas’ right to be free from unreasonable seizure and the s. 8 application is dismissed. Conclusion [31] Since the Charter applications were dismissed, I find the prosecution has proven the charge against Mr. Lucas beyond areasonable doubt and a conviction will be registered.

Released: October 30, 2019 Signed: Justice of the Peace Kevin J.A. Hunter [5] Sir Robert Peel's Principles of Law Enforcement, 1829 [6] R. v. Collins, (SCC), [1987] 1 S.C.R. 265