CITY OF GREATER SUDBURY — v. —, 2019 ONCJ 318

ONTARIO COURT OF JUSTICE CITATION : Greater Sudbury (City) v. Thibert , 2019 ONCJ 318 DATE: 2019 05 08 COURT FILE No. 4060-6155899B BETWEEN: CITY OF GREATER SUDBURY — AND — RICHARD THIBERT Before Justice of the Peace J.G. McMahon Heard on March 22, 2019; Decision on April 3, 2019 Written Reasons released on May 8, 2019 Christian Tremblay.................................................................. Counsel for the municipality The defendant Richard Thibert……………………………On his own behalf JUSTICE OF THE PEACE J. G.

McMAHON: [ 1 ] Richard Thibert was charged with depositing snow or ice on a highway contrary to a municipal by-law. The by-law at issue is City of Greater Sudbury, By-law 2011-219, Road Fouling By-law (13 October 2011), s. 8(1). The offence date was stated as November 21, 2018. [ 2 ] The charge was prosecuted as a

Part 1 proceeding under the Provincial Offences Act , R.S.O. 1990, c. P.33 ( POA ). The trial was held on March 22, 2019. [ 3 ] On April 3, 2019, I found Mr. Thibert “not guilty” of the offence charged and I indicated that my written reasons would follow. I. BACKGROUND [ 4 ] Richard Thibert resides in the community of Hanmer, which is located in the City of Greater Sudbury. Emilie Fortier is a neighbour.

She made the complaint that led to the investigation and the charge before the Court. [ 5 ] Richard Thibert and Emilie Fortier share a history of neighbour disputes that have led to other legal proceedings and resulting orders. Whether this unfortunate history helped fuel the complaint against Mr. Thibert was not material to the outcome of this trial.

[6] Four witnesses testified at trial: Emilie Fortier—the neighbour and complainant; Gerald Sagle—the by-law enforcement officer;Lise Thibert—the Defendant’s spouse; and Richard Thibert. Exhibits were also filed in the course of the trial, including a seriesphotographs taken by Ms. Fortier on the date of the reported offence. The photographs show, among other things, a tractor transportingand unloading snow across what was identified as Notre Dame Avenue, in the community of Hanmer. The fact that Mr. Thibert wasoperating the tractor was never at issue. II.

THE NEED TO PROVE A MUNICIPAL BY-LAW [7] In my view, the Prosecution failed to prove the municipal by-law creating the offence charged. As a result, a finding of “notguilty” must follow. [8] Municipal by-laws must be proven. A court cannot take judicial notice of a municipal by-law at common law or by way ofstatute: see Onyskiw v. CJM Property Management Ltd, 2016 ONCA 477, at paras. 89-90; R. v. Bleta, (ON CA),[1966] 2 O.R. 108; Grand Central Ottawa Ltd. v. Ottawa (City), (ON SC), [1998] O.J. No. 2149 (ONCJ); R. v.Bryce, [2009] O.J. No. 3640 (ONSC), at paras. 40-42 [‘R. v.

Bryce’]; York (Regional Municipality) v. 1085638 Ontario Limited, 2018ONCJ 658, at paras. 25-26 [ ‘York v. 1085638 Ontario Limited’]; R. v. Clark, [1974] O.J. No. 1904 (Ont. C.A.) [‘R. v. Clark’]; R. v.McLaren, [1981] O.J. No. 51 (Ont. C.A.) [‘R. v. McLaren’]; R. v. Snelling, (ON CA), [1966] 2 O.R. 273 (Ont. C.A.);Ian M. Rogers, The Law of Canadian Municipal Corporations, (Toronto: Thomson Reuters Canada Limited, 2016—Release 12) at pages488.21-488.25; John P. Allen, (Hon.) Rick Libman, Handling Provincial Offence Cases in Ontario, (Toronto: Thomson Reuters CanadaLimited, 2017) at pages 258-259; S. Lederman, A.

Bryant, Michelle Fuerst, Sopinka Lederman & Bryant: The Law of Evidence inCanada, Fifth Edition, (Toronto, LexisNexis Canada, 2018) at page 1404. [9] The weight of authority confirms that proof of the municipal by-law creating the offence charged is essential to the Prosecution’scase. Proof of a by-law includes its existence, validity and content on the date of the alleged offence.

There can be no conviction in theabsence of proof of the municipal by-law. [10] It is important to consider that a court must take judicial notice of provincial legislation and regulations: ss. 13 and 29 of theLegislation Act, 2006, S.O. 2006, c.21, Sched. F. The Legislature has not extended similar treatment to municipal by-laws. [11] The obvious benefit of the ability to take judicial notice of a fact or a law is that it “dispenses with the production of evidence toprove it”: R. v. ‘Evgenia Chandris’, (SCC), [1977] 2 SCR 97, at p. 100, per Laskin C.J. In R. v. St. Lawrence CementInc., (ON CA), [2002] O.J.

No. 3030 (Ont. C.A.), the Court stated as follows, at para. 16: The requirement that the court must take judicial notice of statutes and regulations avoids the cumbersome and slow process of commonlaw proof by witnesses to authenticate legislation. [12] There are two principal ways to prove a by-law in Ontario. First, the Legislature has established statute-based methods tofacilitate the proof of municipal by-laws. Second, the prosecution may adduce evidence at trial to authenticate the by-law creating theoffence. Statute-based methods to prove a municipal by-law [13]

Section 447.6 of the Municipal Act, 2001, S.O. 2001, c.25. sets out two methods to prove a by-law. First, a copy of the by-law,certified by the clerk of the municipality and under the seal of the municipality, may be filed with the court: s. 447.6 (1). Second, theoriginal by-law “under the seal of a municipality and signed by head of council or presiding officer at the meeting at which the by-law ispassed” may be presented in court by the clerk of the municipality or another municipal officer charged with the custody of the by-law:s. 447.6 (5). [14] The method set out in s. 29 of the Evidence Act, R.S.O, c.

E.23 may also be of assistance in proving a municipal by-law: Sorrie v.Cluting, 1955 CarswellOnt 360 (Ont. C.A.), at para. 4; Grand Central Ottawa Ltd. v. Ottawa (City), (ON SC),[1998] O.J. No. 2149 (ONCJ), at para. 8. It is noteworthy that a municipal by-law must be under the seal of the corporation and signedby the clerk and the head of council or the presiding officer at the meeting in which the by-law was passed: Municipal Act, s. 249.

[15] In the usual course of proving a by-law by way of statute, the Prosecution will formally tender a certified copy of the by-law asan exhibit before the close of its case. In practice, it will be rare for a municipal clerk attend at trial to tender an original by-law as per s.s. 447.6 (5) of the Municipal Act. [16] The prosecution and defence can certainly agree—expressly or implicitly—as to the existence, validity and content of amunicipal by-law. A municipal by-law must be proven in the absence of such an agreement.

The POA does permit a court to “receiveand act upon any facts agreed upon by the defendant and prosecutor without proof or evidence”: s. 46 (4). In a 2011 case, the certifiedcopy of the by-law was present in the courtroom during trial, but it was not filed as an exhibit. On appeal, the Court concluded that—inthe circumstances of those proceedings—there existed an implicit agreement between counsel conceding proof of the by-law: Sproule v.Oshawa (City), [2011] O.J. No. 4732 (ONCJ); affirmed R. v. Sproule, [2012] O.J. No. 3767 (Ont. C.A.).

In my view, however, aninformed and on the record agreement would be required where a defendant is self-represented. Adducing evidence to prove a by-law at trial [17] Where the Prosecution does not avail itself of the statute-based methods to prove a by-law, it must prove the by-law as a fact bythe established rules of evidence. As noted above in R. v. St. Lawrence Cement Inc., authenticating legislation by adducing evidence canbe an involved process.

Similar considerations would apply with respect to by-laws. [18] Whether the evidence, at trial, is sufficient to prove the existence, validity and content of a by-law will necessarily be determinedon a case-by-case basis. In R. v. Bryce and York v. 1085638 Ontario Limited, the courts recognized that a by-law can be proven byevidence at trial—even circumstantial evidence. In both cases, however, the evidence was not sufficient to prove the by-law. [19] There is a significant body of case law that involves the use of road signs and markings to infer the existence of traffic-relatedmunicipal by-laws: see R. v.

McLaren; R. v. Clark ; R. v. Vaseloff, [2004] O.J. No. 6185; R. v. Sholtens, 2008 ONCJ 282. In R. v.McLaren, at para. 4, the Court of Appeal stated: Although we are satisfied that it is necessary to prove the existence of the by-law designating a crossover, we are all of the opinionthat the evidentiary burden may be satisfied by inference from evidence of the existence of such a crossover indicated by signsand markings of the kind that are commonly associated with pedestrian crossovers in this province. In our opinion, the decision ofthis Court in R. v.

Clark (1974), (ON CA), 3 O.R. (2d) 716, 18 C.C.C. (2d) 52 governs the disposition of this appealwith respect to the proof required to establish the existence of the by-law, and the learned judge erred in law in holding that in thecircumstances of this case there was no evidence establishing the existence of the by-law. [20] In the somewhat different legal context of proving federal statutes, regulations and subordinate or delegated legislation—oldercase law points to ways by which the process was facilitated. In R. v.

Kishen Singh, (BC CA), the Court confirmedthat the trial judge could permit the Crown to re-open its case to remedy an inadvertent omission to prove the proclamation bringing astatute into force—where it did not prejudice the accused. In my view, the exercise of judicial discretion to permit a re-opening wouldnecessarily be guided by the factors identified in more recent case law: R. v. G. (S.G.), (SCC), [1997] 2 S.C.R. 716. InR. v. ‘Evgenia Chandris’, the Court decided that judicial notice could be taken of the federal regulation at issue.

It added, however, at p.110, that the trial judge could have directed the prosecution to prove the particular regulation and grant an adjournment for that purpose. [21] Returning to the provincial context, the requirement to prove a municipal by-law may appear somewhat antiquated in an agewhere by-law information is often available on municipal websites. It could also appear incongruent with the philosophy said to governthe POA—to ensure that technicalities do not impede deciding regulatory cases case on their merits: Ontario (Ministry of Labour) v.Discovery Place Ltd, [1996] O.J. No. 690; affirmed [1997] O.J.

No. 1887 (Ont. C.A.). The reality, however, is that the requirement toprove a municipal by-law continues to be an entrenched principle that pre-dates the POA and is, by design, woven into the legislativeframework governing the prosecution of regulatory offences. This is illustrated by the following. • The Legislature has provided statutory mechanisms to facilitate the proof of by-laws.

The Legislature has not extended theobligation to take judicial notice to municipal by-laws. • The POA provides narrow exceptions by which a defendant can be convicted without the need to prove a municipal by-law: see s.9(3) where a defendant is deemed not to dispute a charge; see s. 18.4(4) where a defendant fails to appear at a parking trial. • There is an exception that permits a court reviewing a conviction (made without proving a by-law) to dispense with proof of theby-law or relax the manner in which it is proven: Municipal Act, s. 447.5 (1). However, in s. 447.5 (2) the Legislature expressly reminds

us that this exception does not alter the requirement to prove a by-law at trial. The provision reads as follows: 447.5

(2) Nothing in this

section relieves a prosecutor from the duty of proving the by-law or entitles the convicting court to dispensewith such proof. Application to the present case [22] At trial, the Prosecution did not access any of the statute-based methods to prove the by-law. It would have necessarily relied onthe admissible evidence at trial. [23] In his examination-in-chief, Mr. Sagle, the by-law enforcement officer, was presented with a copy of the by-law. He was askedwhether the by-law had been amended or repealed at any time. He responded that he could not answer the question.

He was then asked ifthe by-law was in force at the time of the offence. He responded that it was. The copy of the by-law was tendered as an exhibit. Mr.Thibert did not object. [24] The copy of the by-law was a photocopy. The copy was not certified by the clerk of the municipality. The seal of the municipalcorporation was not on the document as required by s. 249(1)(

a) of the Municipal Act. The copy shows that it would have been passed onOctober 12, 2011 and signed by the mayor and clerk at that time. The document before the Court was therefore a copy of a 2011document. There was no other evidence in relation to the passing of the by-law. Mr. Sagle could not say whether the content of the by-law had been amended. Stated otherwise, Mr. Sagle testified the by-law was in force, but he did not confirm that the content of the copyof the by-law submitted had not changed. [25] At the close of the Prosecution’s case, I raised the issue of the proof of the by-law.

The Court had a duty to assist Mr. Thibertwho was an unrepresented defendant. That duty included raising and inquiring into legal and evidentiary issues of significance: York(Regional Municipality) v. Grayson, [2016] O.J. No. 5250 (ONCJ), at para. 6; R. v. Richards, 2017 ONCA 424, at paras. 11-113; R. v.A.H., 2018 ONCA 677, at para. 31; R. v. Morillo, 2018 ONCA 582. The Prosecution submitted that there was more than one way toprove a by-law and that the by-law enforcement officer had testified that the by-law was in force.

The issue was left for final submissionsand the trial continued. [26] In my view, the evidence was simply insufficient to prove the existence, validity and content of the by-law at the relevant time. Tendering a photocopy of a by-law dated some seven years ago accompanied by the investigator’s assertion that it is in force does notmeet the Prosecution’s evidentiary burden, especially when the investigator cannot say whether the by-law was amended or repealed atany time. [27] Two additional points merit some discussion.

First, the by-law enforcement officer’s brief statement that the by-law was in forceis, in itself, problematic. It is essentially a conclusory statement—absent any facts supporting the conclusion—about a largely legalquestion—the existence, validity and content of a by-law. Second, the Legislature has provided statute-based methods to facilitate proofof a by-law. To lower the threshold needed to prove a by-law (by way of evidence at trial) by too much may eliminate the point of thosestatute-based methods and increase the risk of accepting into evidence old by-law provisions now amended or repealed.

It has been longrecognized that Parliament (and a Legislature) does not speak in vain: Québec (Procureur general) v. Carrières St. Thérèse ltée, (SCC), [1985] 1 S.C.R. 831, at para. 27. [28] I concluded that the Prosecution’s failure to prove the by-law was sufficient to ground a finding of “not guilty”. However, if Iwere in error on this point and assuming that that the Prosecution had proven the by-law (a conclusion and an assumption I rejected forthe reasons stated above), a finding of “not guilty” had to follow on the merits of the case. III.

DETERMINATION ON THE MERITS OF THE CASE [29] On the merits of the case, I would find that the Prosecution established the actus reus of the offence, but that the evidencesupported a due diligence defence. A finding of “not guilty” would therefore follow. Key Findings [30] The following findings flow from the admissible evidence at trial: • Mr. Thibert resides at 4861 Notre Dame Avenue. • Notre Dame Avenue would meet the by-law definition of “highway”.

• On November 21, 2018, Notre Dame Avenue had been ploughed and the travelled portion of the avenue was apparent from the photographs filed as exhibits. • There is a fenced-in school yard on the opposing side of the avenue from the Thibert residence. • The school fence did not directly border the ploughed and travelled portion of the avenue. • There is a narrow strip of land between the school fence and the ploughed and travelled portion of the avenue. Mr. Thibert testified and I accepted that there was a ditch on that strip of land running along Notre Dame Avenue.

There were also utility poles and, at least one fire hydrant. • The photographs filed as exhibits show snow on the ground.

The snow is covering visual evidence and indicia of such things as property lines, shoulders, ditches and the surface of the avenue. • With respect to the narrow strip of land between the school fence and the ploughed and travelled portion of the avenue—the photographs and the evidence of the witnesses, including that of the by-law enforcement officer, were insufficient to determine the precise locations of such things as: the lateral boundaries of the avenue or roadway—where they began and ended; the nature, condition and width of any shoulders; the width of ditches; and the location of relevant property lines. • On November 21, 2018, Mr.

Thibert was operating a tractor. The tractor was equipped with a front-end loader that he loaded with snow and ice (hereinafter ‘snow’) from the area of his driveway/private entrance. He transported the snow across Notre Dame Avenue and dumped it in and on the area of the ditch (hereinafter ‘in the ditch’) located on the narrow strip of land between the school fence and the ploughed and travelled portion of Notre Dame Avenue.

He repeated the process a number of times on that occasion. • In the process of transporting the snow, some would have ended up on the travelled portion of Notre Dame Avenue near the entrance to Mr. Thibert’s driveway. That amount of snow was relatively small as compared to the amount he dumped in the ditch. He removed the snow that ended up on the travelled portion of the avenue without delay. On this last point I accepted the evidence of Mr. Thibert. Ms. Fortier’s testimony wavered on this front impacting its reliability. • The actions of Mr.

Thibert on November 21, 2018, did not impact the width of the travelled portion of Notre Dame Avenue. • Mr. Thibert has not repeated the conduct since he was charged. The by-law [ 31 ] For ease of reference, the provision that would create the offence charged would read as follows: 8(1) No person shall throw, push, plow, dump or otherwise deposit any snow or ice on any highway or part thereof, by any means whatsoever, regardless of whether the snow or ice has been removed from an adjoining property, a private entrance or a sidewalk. [ 32 ] The

definitions

section of the by-law (s. 1) would include a definition of “highway” that is similar, but not identical, to that found in the Highway Traffic Act , R.S.O. 1990, c. H.8 ( HTA ). The by-law definition would read as follows: “highway” means a common and public highway, street, avenue, parkway, laneway, driveway, square, place, and includes any bridge, trestle, viaduct, or other structure forming part of the highway, designed and intended for, or used by, the general public for the passage of vehicles and except as otherwise provided, includes a portion of a highway; and includes the area between the lateral property lines thereof;

[33] The

definitions

section also provides

definitions for “private entrance”, “roadway”, “shoulder” and “sidewalk”. Each can beconsidered as part of a “highway”. For example, a “shoulder” is adjacent to a “roadway” and has a surface that has been improved withasphalt, concrete or gravel for the use of vehicles. [34] In R. v. Shergill, 2016 ONCJ 163, at para. 11, the Court confirmed that the actus reus of an offence is defined by the words ofthe statute. In this case it is defined by the words of the by-law. The Prosecution had to prove each constituent element of the actus reusof the offence beyond a reasonable doubt. This requirement is grounded in s. 11(

d) of the Charter: R. v. Wholesale Travel Group Inc., SCC, at p. 248. The wording of the by-law creating the offence would state that the offence may be committed bythrowing, pushing, plowing, dumping or depositing snow. The Prosecution had to, however, also prove—beyond a reasonable doubt—that one those acts resulted in snow on a highway or part of a highway as defined by the by-law. The snow dumped across Notre Dame Avenue [35] There was proof beyond a reasonable doubt that Mr. Thibert transported and dumped snow in the ditch across Notre DameAvenue on November 21, 2018.

I was, however, left with a reasonable doubt as to whether that specific location was on a highway orpart of a highway as defined in the by-law. Proof beyond a reasonable doubt is a high standard that was simply not met on this point. [36] In R. v. Villaroman, 2016 SCC 33 , [2016] 1 SCR 1000, at para. 28, the Court confirmed that reasonable doubt can bebased on evidence as well as the absence of evidence. No plans, maps, drawings or diagrams of the relevant portions of Notre DameAvenue were put into evidence.

There was some limited witness evidence as to property lines and where the “highway” would begin onthe side of Notre Dame Avenue where Mr. Thibert and Ms. Fortier resided. There was an absence of such evidence with respect to thelocation that mattered most at this trial—the other side of the avenue (i.e. school yard side) where Mr. Thibert dumped the snow. [37] As noted above, the evidence of the witnesses and the photographs filed as exhibits were not sufficient to establish cleardemarcation points between such things as property lines, the roadway, shoulders and ditches.

There was an absence of trial evidencewith respect to any shoulder at the relevant location. Ditches do not appear to be mentioned in the

definitions

section of the by-law. Albeit in the context of an HTA trial, one appellant level decision would have confirmed that a ditch is not part of a “highway”: R. v.Dyck, 2009 ONCJ 637. [38] As a result, I was simply left with a reasonable doubt with respect to a constituent element of the actus reus of the offence. Torepeat—the requirement is that the Prosecution prove every element of the actus reus beyond a reasonable doubt. At this trial, theProsecution failed to prove that Mr. Thibert’s actions—of transporting and dumping snow where he did—made out the specific offencecharged.

The snow deposited on the travelled portion of Notre Dame Avenue [39] The Prosecution was, however, successful in proving the actus reus of the offence with respect to the snow that ended up onNotre Dame Avenue as a result of Mr. Thibert’s conduct. [40] The words used to define the actus reus of the offence are quite broad and include to “otherwise deposit any snow or ice….. byany means whatsoever”. That language is broad enough to include snow deposited on a highway as a result of the loading andtransporting of snow to a different location.

Snow was clearly deposited on the travelled portion of Notre Dame Avenue. I was satisfied—beyond a reasonable doubt—that the snow deposited at that location was deposited on a “highway” as defined in the by-law. [41] For greater certainty, I concluded that the Prosecution established that Mr. Thibert deposited snow on a highway. TheProsecution did not, however, establish that he threw, pushed, plowed or dumped snow onto a highway. The amount of snow on thehighway was relatively small, but it was not a trivial amount.

The maxim minimus non curat lex—the law is not concerned with thetrivial—did not apply in this case. [42] Public welfare offences are presumed to be strict liability offences: Lévis (City) v. Tétreault, 2006 SCC 12: R. v. Sault Ste Marie, (SCC), [1978] 2 S.C.R. 1299. Neither party argued that the presumption was rebutted in this case. My review of the

criteria related to the classification of offences did not lead me to question the presumption that the offence at issue is a strict liability offence. It follows that simple negligence during the loading and transporting of snow that results in the depositing of snow on a highway provides a degree of fault that is sufficient to impose liability. It must also follow that Mr. Thibert could avoid liability by establishing—on a balance of probabilities—a due diligence defence. Due diligence defence [ 43 ] In my view, the evidence at trial supported a due diligence defence on a balance of probabilities. [ 44 ] Mr.

Thibert testified to the effect that he was proceeding with diligence while moving the snow across Notre Dame Avenue. In examination-in-chief, Ms. Fortier agreed that Mr. Thibert was proceeding with caution on November 21, 2018. She also conceded that he had cleaned up some of the snow that ended up on the avenue. Albeit some 5 days later, Mr. Sagle attended at the location and did not see the accumulation of snow on the travelled portion of the avenue. In final submissions, the Prosecution did not dispute that Mr.

Thibert was acting with diligence in the operation of the tractor on the day in question. [ 45 ] The Prosecution, however, argued that it is not a defence to commit an unlawful act in a diligent fashion. The Prosecution would be correct had it adduced sufficient evidence to prove beyond a reasonable doubt that Mr. Thibert committed the offence charged (i.e. an unlawful act) when he transported snow across the avenue and dumped it where he did. It failed to do so. [ 46 ] Lise Thibert testified at trial, but her evidence was of limited relevance because it was not specific to the date of the alleged offence.

Her evidence was much about how her husband would act, in general, when moving snow. It was weighed accordingly. She testified to the effect that: this was not the first time her husband had moved snow to the other side of the avenue; he would do so cautiously; he would clean up any snow that ended up on the avenue; and she would tell him if he missed any. In other words, they were both sensitive to the issue of snow left on the avenue, had turned their minds to preventing it and would initiate an immediate clean-up if it did happen. [ 47 ] After considering the totality of the evidence—I concluded that Mr.

Thibert operated the tractor in a diligent manner, but a relatively small amount of some snow nonetheless escaped his control and ended up on the avenue. He cleaned it up without delay. As a result, he was also “not guilty” of the specific offence charged on the merits of the case. Released: May 8, 2019 Signed: Justice of the Peace J.G. McMahon