R. (ex rel. Scheuermann) v. Gross, 2015 ONCJ 773

Citation: R. (ex rel. Scheuermann) v. Gross , 2015 ONCJ 773 Ontario Court of Justice Toronto Region Case Name: SCHEUERMANN v. GROSS In the matter of the Provincial Offences Act , R. S. O. 1990, c. P. 33. B E T W E E N: SCOTT SCHEUERMANN, Private Informant, and MART GROSS, Defendant REASONS FOR SENTENCE Before: His Worship Mohammed Brihmi Sentence hearing held: July 24, 2015 Oral Judgement: July 24, 2015 Judgement released: December 11, 2015 Counsel: Mr. J. Chalmers, Provincial Prosecutor Ms. L. Daviau, Counsel for the Defendant M. BRIHMI J.P. (Orally):-- INTRODUCTION

[ 1 ] The matter before the court is the sentencing of Mart Gross.

On April 24, 2015, he was found guilty of the following offence : That Mart Gross of 32 Fallingbrook Crescent in the City of Toronto, on or about the 1 st day of April 2013, at 34Fallingbrook Crescent in the City of Toronto did commit the offence of I njure or Destroy a Tree Growing on the Boundary Between Adjoining Lands Without the Consent of the Land Owner, Contrary to The Forestry Act of Ontario, s. 10 (3) . [ 2 ] The sentencing hearing took place on July 24, 2015 and the court made an oral judgement, at the request of the parties, just after the hearing, on the same day.

As promised to both parties, this is my written and released judgement on this matter. THE OFFENCE AND PENALTY PROVISION [ 3 ] Subsection 10 (3) of the Forestry Act states as follows: • Every person who injures or destroys a tree growing on the boundary between adjoining lands without the consent of the land owners is guilty of an offence under this Act. 1998, c. 18 Sched. 1, s. 21 Offence [ 4 ] S ection 19 of the Forestry Act provides the following: [ 5 ] 19.

(1) Every person who, (

a) contravenes a provision of this Act; (

b) alone or through any other person, contravenes any provision of a by-law passed under this Act, or a predecessor of this Act; (

c) obstructs or interferes with an officer or any person acting under the officer’s instructions, in the discharge of his or her duties; or (

d) fails, without just cause, to comply with an order made under subsection (2), is guilty of an offence and on conviction is liable to a fine of not more than $20,000 or to imprisonment for a term of not more than three months, or to both. 1998, c. 18, Sched. I, s. 21; 2002, c. 17 , Sched. C, s. 12 (5). Replanting [ 6 ] 19. (2 ) If a person is convicted of an offence under clause (1) (b), the court shall consider all evidence given in respect of the necessity of replanting the area on which trees have been destroyed and may order the owner of the area to, (

a) replant the trees, in the manner and within the time that the court considers appropriate; and (

b) adequately maintain the replanted trees in the manner the court considers proper. 1998, c. 18, Sched. I, s. 21. Where inconsistent penalties [ 7 ] 19.

(3) The penalty set out in subsection (1) applies despite any lower penalty set out in a by-law. 1998, c. 18, Sched. I, s. 21. [ 8 ] According to the legislation, the court has the following options on this matter : • to fine the Dr. Gross up to $ 20,000.00; • to imprison the defendant for a term of not more than three months; • to make a probation order in regards to Dr. Gross pursuant to

Section 72 of the POA; • to issue an order to Dr. Gross to replant the tree.

DEFENCE SUBMISSIONS [ 9 ] In the sentencing hearing, the counsel for the defence submitted, on behalf of Dr. Gross, what could be summarized as follows: [ 10 ] The defence submitted that they are seeking the lowest fine possible under the Forestry Act and made a reference to the following background and principles: Background of Dr. Mart Gross: [ 11 ] Dr. Gross’s counsel submitted that he is 63 years old and has owned, with his wife, the property at 32 Fallingbrook Crescent for almost 12 years.

In addition, he is considered one of the top scientists in Canada and one of the leading and internationally recognized biologists dealing with the restoration as well as the protection of endangered species. [ 12 ] Furthermore, counsel submitted that Dr. Gross was, among others, appointed by the Minister of the Environment to the Committee on the Status of Endangered Wildlife in Canada as the Co-Chair of Marine Fishes and won the highest teaching Award of the University of Toronto. In addition, he has no criminal record and this is his first offence under this Act or any other regulatory act.

Mitigating Factors in favor of Dr. Gross: [ 13 ] Defence counsel submitted that there are mitigating factors in regard to Dr. Gross: [ 14 ] He sought and received the Confirmation of Exemption from the City to remove the tree that was an imminent hazard. Therefore the city identified the tree as a hazardous one that needed to be taken down. Furthermore, defence submitted that Dr. Gross did what he believed he was required to do and was right to remove the Norway maple tree to ensure the safety of his family and of his guests as well as the safety of the Scheurmanns and their guests. [ 15 ] Furthermore, Dr.

Gross’s counsel submitted that he was acting in good faith and that he sustained considerable costs to himself and to his wife by removing the tree, a cost that could have been shared with the Scheurmann. [ 16 ] In addition, defence counsel submitted that Dr. Gross made some attempt to rectify the matter with his neighbour by offering to replant the Norway maple tree. Additionally, defence submitted that he sent a letter dated February 10, 2012 to inform and involve Mr. and Mrs.

Scheurmanns about the removal of the tree and the sharing of the cost. [ 17 ] Furthermore, defence asked the court to consider the Agreed Statement of Facts which was entered as an Exhibit in the trial proceedings for which reduced court time as well as the number of witnesses for both parties. This streamlining of the proceedings resulted in substantial savings to the court and other potential witnesses. Defence argued that Dr.

Gross’s participation and cooperation in this effort it showed that he has acted reasonably and responsibly and should be considered in fixing the sentence. [ 18 ] When addressing the court, Dr. Gross told me that both he and his wife are highly responsible and hardworking citizens who ensured the fence and the construction on their front yard is fully inspected and permitted.

In regard to the removal of the Norway maple tree, he indicated that he acted on the instruction of the City of Toronto and that he had hired a highly reputable arborist to inspect and remove a dangerous tree. [ 19 ] Furthermore, he told the court that they believe the safety of people is paramount and by the removal of the dangerous tree, it is now safe for his family, their friends and their visitors, as well as for the Scheurmanns. Even though, the Scheurmanns have lost some shade, he testified that they have gained the benefit of safety from a dangerous tree. Principles of Sentencing:

[ 20 ] Defence asked the court to apply and take into consideration the legitimate principles of sentencing to ‟ determine a just and appropriate sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offenderˮ as set out in the Supreme Court decision of R. v. M (CA), (1996). [ 21 ] Counsel asked the court to consider that Dr. Gross is a first time offender who believed that he was justified in removing a boundary tree that was labelled to be hazardous. Therefore, defence contends that Dr.

Gross was punished enough by having to retain counsel, missing seven days of work for him and his wife lost days of work as well as enduring the stress associated with these proceedings. [ 22 ] In addition, counsel asked the court to consider the principle of parity and brought to the court attention the only case under the Forestry Act which was appealed from the Ontario Court of Justice in Halton (Regional Municipality) v. Vastis of 2008. [ 23 ] Counsel submitted that this matter dealt with the destruction and removal of trees in an environmentally sensitive area to build a golf course.

Further, the removal continued after a Stop Work Order was delivered and was considered as the worst destruction of habitat in that environmental sensitive area. In that matter, the justice imposed a fine of 3000.00 for each of the eleven counts, a sentence which was upheld on appeal. [ 24 ] Defence counsel, however, submitted that in the case of Dr. Gross, he was convicted of removing a single tree for which he received a report from an arborist and a permit of exemption that declared it to be hazardous. Furthermore, defence submitted that Dr.

Gross removed the tree not for personal or financial gain and did not do it to an environmentally sensitive area. [ 25 ] In response to the Prosecution submissions regarding the pictures in Exhibit 2A, 2B and 2C, counsel for the defence submitted that the court should give them very limited weight, as the construction is in Dr. Gross’s property, in the front yard on the city property and is fully permitted. Thus, this work was approved by the Committee of Adjustment, it was permitted properly, and it was legal. [ 26 ] Defence, therefore, submitted that Dr.

Gross should not be punished for engaging in legal activities on his own property, and there is no principle of sentencing that could justify imposing a probation order. [ 27 ] Thus, defence asked the court to impose the minimum fine which is significantly less than $3000.00. SUBMISSIONS OF THE PROSECUTION: [ 28 ] In his submissions, counsel for the Prosecution addressed the principles of sentencing and made reference to the decision of the Provincial Court of British Columbia in R. v. Scott Steel Ltd. and Ron Scott of 2006. This decision made extensive reference to R. v. M (CA) as well as to R. v. Cotton Felt.

It says at paragraph 11: [ 29 ] This theme is dealt with some years later in the Supreme Court of Canada in the case of R. v. M. (C.A.) , and I am quoting from the excerpt contained in His Honour Judge Jardine's sentence with respect to C.A.M. in this matter.

At page 369, paragraph 81 of the C.A.M. case, the Supreme Court of Canada wrote: The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated.

In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instils the basic set of communal values shared by all Canadians as expressed by the Criminal Code . [ 30 ] Furthermore, counsel for the prosecution submitted that the courts are following the Supreme Court of Canada in establishing the need to address in a Provincial Offence Statute in terms of sentencing the principles contained in the criminal code.

In addition, he asked the court to refer to s. 718 of the Criminal Code of Canada dealing with the purpose of sentencing and also s. 718 (1) dealing with the fundamental principle that reads the following: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender . [ 31 ] In addition, Prosecution submitted a Victim Impact Statement. It indicated that the Scheurmanns were devastated by the defendant’s actions.

They suffered huge stress, a loss of money and time as a result of the proceedings as well as the loss of their enjoyment of their garden and their backyard. [ 32 ] In regard to the Norway maple tree, the prosecution submitted that it sat there for three years without causing any damage, and that the Permit of Exemption had conditions attached to it which Mr. Gross did not comply with. In addition, Counsel for the prosecution submitted that the manner in which the tree was taken down on a holiday weekend was a deliberate attempt not to provide the Scheurmanns with the opportunity to deal with the situation.

[ 33 ] The prosecution submitted that in the court decision involving Halton Region v. Vastis, there are number of distinguishing factors, among them the number of trees destroyed and the total fine imposed was $33.000.00 and not 3000 dollars. In addition, the order for replanting that was around $78000.00 dollars. Accordingly, the totality of costs in the matter far exceeded the single tree here. [ 34 ] The Prosecution presented the court with Exhibit 2A, 2B and 2C involving three pictures of a construction fence, a No Trespassing sign, a post and some rocks in the boundary line between the properties.

Furthermore, Counsel for the Prosecution submitted that this work has the potential to impact on the Scheurmann property. For the prosecution, there is and there will be a continuing issue if there is not supervisory order from the court. [ 35 ] Furthermore, the Prosecution referred to the court decision in R. v. Scott Steel Ltd. And Ron Scott of 2006 and submitted that even though this matter was an Industrial accident under the Workers' Compensation Act, there remains that the principles are the same and the court made specific reference to R. v.

Cotton Felts of 1982. [7] I agree with both counsel that a monetary penalty is what is called for here on all counts against both Ron Scott and his corporation. It is also clear that the amount of the fine has to be of an order of magnitude that clearly takes it away from simply the cost of doing business. The amount of the fine in no way represents the value of the lives lost and injuries suffered. I do not propose, as well, to review all of the cases that have been provided. I have read them all.

I do think it important, though, to read, as counsel suggested I probably would, the relevant passage from what is still the leading case, R. v. Cotton Felts Ltd . from the Ontario Court of Appeal in 1982. Starting in paragraph 18: Sentencing for this type of offence cannot be achieved by rote or by rule. In every case it is the responsibility of the sentencing judge to impose a fit sentence, taking into account the factors upon which I now propose to comment.

The Occupational Health and Safety Act – [8] Which is the Ontario equivalent of our Workers' Compensation Act. -- is part of a large family of statutes creating what are known as public welfare offences. The Act has a proud place in this group of statutes because its progenitors, the Factory Acts , were among the first modern public welfare statutes designed to establish standards of health and safety in the work place. Examples of this type of statute are legion and cover all facets of life ranging from safety and consumer protection to ecological conservation.

In our complex interdependent modern society such regulatory statutes are accepted as essential in the public interest. They ensure standards of conduct, performance and reliability by various economic groups and make life tolerable for all. To a very large extent the enforcement of such statutes is achieved by fines imposed on offending corporations. The amount of the fine will be determined by a complex of considerations, including the size of the company involved, the scope of the economic activity in issue, the extent of actual and potential harm to the public, and the maximum penalty prescribed by statute.

Above all, the amount of the fine will be determined by the need to enforce regulatory standards by deterrence. The paramount importance of deterrence in this type of case has been recognized by this Court in a number of recent decisions. An example is provided by R. v. Hoffman-LaRoche Limited (No.2) . In that case Mr. Justice Linden imposed a fine of $50,000 for an offence under the Combines Investigation Act , and stated the principles governing the amount of a fine as follows : In conclusion, I feel that a fine that is more than nominal, but which is not harsh, would be appropriate in this case.

The amount must be substantial and significant so that it will not be viewed as merely a licence for illegality, nor as a mere slap on the wrist. The amount must be one that would be felt by this defendant. It should also serve as a warning to others who might be minded to engage in similar criminal activity that it will be costly for them to do so even if they do not succeed in their illegal aims. [9] To continue the quote at paragraph 21: Another example is provided by this Court's decision in R. v. K-Mart Canada Limited (1982).

In that case the Court increased a fine of $25,000 to $100,000 for a company convicted of conspiring to interfere with the formation and operation of a trade union, contrary to the Labour Relations Act . In so doing Chief Justice Howland had this to say at p. 332: In our opinion, the fine imposed did not adequately reflect the gravity of the offence and was an error in principle.

The fine must not be tantamount to a licence fee to commit illegal activity, but must be sufficiently substantial to warn others that such illegal activity will not be tolerated. [ 36 ] In conclusion, the Prosecution submitted that the fine required must be very substantial, in the realm of 10000.00 which is not harsh or out of line for someone in the situation of Mr. Gross. Furthermore, the prosecution asked the court to impose a Probation Order for two years for the purposes of rehabilitation as well as to provide some assurance that this matter or similar behaviour is not going to

occur or reoccur. APPLYING SENTENCING PRINCIPLES [ 37 ] In this matter, the court has endeavoured to apply the sentencing principles in the decision of the Supreme Court of Canada in R. v. M. (C.A.) to "... determine a just and appropriate sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender" and the decision of the Court of Appeal of Ontario in R. v.

Cotton Felts Tld. (1982) that established deterrence as the paramount consideration for deciding a fit sentence for a public welfare or regularity offence . [ 38 ] In attempting to determine a just and appropriate sentence, I am taking into consideration both submissions of the parties, the case law as well as the aggravating and mitigation factors and tailoring them to the particular circumstances of the defendant and the particular offence. [ 39 ] Although Dr.

Gross has been convicted of this provincial offense under the Forestry Act , the court accepts that this not one of the most serious regulatory offences in terms of its nature and circumstances. Furthermore, this offence is not one that involves fraud, fatal and/or major injuries or proof of mens rea.

Therefore, this distinction justifies the difference in approach to the sentencing in this matter by favouring the deterrence in a more positive aspect and the protection of the public . [ 40 ] Based upon this Court's findings, there are certain aggravating factors which must be considered before determining the appropriate sentence to impose: [ 41 ] The court accepts that this matter has caused stress to the Scheurmanns and cost them a lot of money.

Furthermore, the court accepts that they have lost the enjoyment of the existing shade in their backyard and their nice garden. [ 42 ] In addition, the court notes that the Norway maple tree was not removed for almost three years even though Dr. Gross knew from the arborist’s reports and the Confirmation of Exemption from the City of Toronto that it was identified as a hazardous tree. [ 43 ] On the other hand, the court accepts that there are mitigating factors that must be considered.

Some of these factors were presented by the defence and also referred to by the prosecution: • We are dealing with a defendant who has no criminal record and this is his first offence under this Act or any regulatory act; • I accept that Dr. Gross had sought and received a Confirmation of Exemption from the City of Toronto regarding the Norway maple tree being a hazardous tree. In addition, I accept that he assumed all the cost related to the removal of the tree and attempted to replant one on his property • I find and accept that the agreed statement of fact reduced court time.

Therefore, it was a huge saving to the court and other potential witnesses. The court notes that at the Judicial Pre-Trial document referred to three witnesses from the prosecution and one to three witnesses from the defence.

DISPOSITION [ 44 ] There is a need to send a clear message that the removal of a boundary tree without the Consent of the co-owners, even with an arborist report or with a municipal permit of Exemption is not only illegal, but also impacts negatively on the relationship between the neighbours. [ 45 ] In regard to the submissions of the defence regarding the principle of parity, I accept and adhere to this principle.

It requires the court to impose a sentence that is similar to other sentences imposed on similar defendants for similar offences committed under similar circumstances. [ 46 ] The court accepts that there is only one case that has dealt with the Forestry Act in Halton (Regional Municipality) v. Vastis. Counsel for the prosecution argued that there are distinguishing factors in regard to the number of trees and the total cost involved.

Even though I recognise the differences between the two matters, I apply this principle as a starting point in determining the appropriate fine. [ 47 ] I find that both specific and general deterrence need to be addressed in this case because of the strong impact that this type of behaviour has on the relationship between the parties, their families, their guests and their friends, as well as its poisonous effect on the well-being of the community. [ 48 ] Under all circumstances, a fine of $5000 is appropriate on this matter.

It addresses specific deterrence and it sends a strong denunciatory message. [ 49 ] I have decided not to impose a probation order on Dr. Gross as requested by the Prosecution. I do not find it necessary and appropriate as the Norway maple tree was in the backyard and it has been already removed as of 2013. In addition, the court does not order any replanting that requires a follow up or any monitoring. Furthermore, the court is giving very limited value to the pictures in Exhibit 2 as it deals with the front yard of Dr. Gross. The fence and this construction are in his property and it was fully permitted.