R. ex rel. Moogk v. Shouldise, 2010 ONCJ 604

Citation: R. ex rel. Moogk v. Shouldise , 2010 ONCJ 604 IN THE MATTER OF Brampton By-Law 172-2006 Line Fences Act, R.S.O. Ch. L.17 as amended Provincial Offences Act Private Prosecution Between Heather Moogk Prosecutor and Bonnie & Ramona Shouldise Defendant Ontario Court of Justice Brampton, Ontario G. Manno, Justice of the Peace Reasons for Judgement Trial Held: August 13th, 2010 Judgement Rendered (written reasons filed) December 3rd, 2010 (

A) Background ( 1 ) Ms. Heather Moogk (the Prosecutor) and Bonnie with her mother Mona (collectively referred to as the Defendant), have lived side by side at 89 and 87 Dorchester Drive in the City of Brampton for over 25 years. For much of that period, the families lived in harmony as neighbours. In 2003 or 2004 for a variety of reasons, some made clear to the Court, others not, the friendship ended with the two neighbours feuding constantly, becoming bitter enemies. Both sides turned to the police, to other neighbours, and the Courts to help resolve their disputes.

Despite mediation attempts by the police services and the Courts, the two remain locked in an adversarial relationship and affirm nothing more than to be left in peace and free from any communication with each other. Neither party wishes to move from their residence. Despite the Court’s invitation to resolve matters in an amicable fashion, neither wishes to deal with their matter outside of a trial. The acrimony continued and eventually manifested itself as a dispute over respective property rights and disagreements about shared property line activities.

Some of these disagreements will be more fully explained below ( 2 ) The Property dispute came to light sometime during 2006. Both sides have loosely referenced a Superior Court motion brought by the Defendant against the Prosecutor Moogk that was subsequently endorsed as abandoned by that Court. The Shouldises claim that their Counsel, though retained had failed to attend Court to argue that Motion and they have since contacted the Law Society to seek remedy.

Though not specifically referenced, this Court has reasonably inferred based on scant information provided by both sides, that the issue at Bar in 2006 was a motion claiming Adverse Possession . Prior to 2006 it appears that Ms. Moogk asphalted her driveway. In

her view the asphalting was completed up to the property line. The Shouldises disagree and based on their own commissioned (2004) survey, they believe that the asphalt was carried over onto their property and as such, made application to the Superior Court under the Adverse Possession Rule of Law. That issue appears to remain unresolved as of today’s date. Each party has their own commissioned survey of the property and both disagree as to the exact location of the shared property line. The Shouldises contend that the driveway now encroaches onto their land and rely on that 2004 survey to prove that fact. Ms.

Moogk disagrees. ( 3 ) It should be distinctly understood that there is a forty year old hedge on the front of the Defendant’s property that extends back some thirty-seven feet in length along and parallel to the shared property line and is approximately six-feet, one inch high. The hedge appears to be entirely on the Defendant’s property. The Defendant does not wish to remove that hedge and feels the need to regularly trim the hedge on all sides. This includes the side that cannot be seen by the Defendant which faces the Prosecutor’s property.

That particular side is also visible to folk who drive or walk by the property. Trimming this hedge on all sides exemplifies their pride of ownership and the Shouldises belief is that it is an owner’s right and duty to maintain that hedge.

The width or breadth of this hedge is unknown to the Court but it appears clear from the evidence that when the Defendant needs to trim the hedge, the clippings from this hedge fall upon the driveway of the Prosecutor causing some consternation and becomes another focal point for their ongoing dispute. ( 4 ) There have been instances where the clippings from this hedge have rained down on the Prosecutor’s driveway causing the Prosecutor to complain about the neighbour. In some instances the Prosecutor’s temper and frustration has reached the ‘boiling point’ resulting in calls being made to the Police.

The Shouldises have testified that on some of those occasions the Prosecutor has attempted to have them charged with Trespassing as the Defendant stands near, onto, or perhaps over the property line to trim the other side of this hedge. Police and neighbour involvement to attempt to resolve this dispute has been unsuccessful to date. ( 5 ) In simple terms, the Defendant wished to keep their hedge trimmed on all sides of the hedge and that Ms.

Moogk did not want the Shouldises leaving any clippings on her property nor was she happy that they were trespassing onto her property in order to trim their hedge. ( 6 ) Both parties claim that the money settlement is not of prime importance to them but their ultimate goal is to fulfill their shared wish; to be left alone to quietly enjoy their respective residences, free from any nuisance caused by the other party. ( 7 ) The Defendants assert that each and every time they attempted to trim this hedge, the Prosecutor would complain and cause them undue stress.

In July of 2007, in an attempt to satisfy their ongoing need to trim this hedge and not trespass onto the Prosecutor’s land, they erected a temporary, orange, plastic snow- type or construction-type fence using vertical metal rebar to support the plastic. Such fences can normally be seen around construction sites, city work sites or sometimes used as a snow fence. It is bright orange, porous in nature, stands about 3feet or 4 feet high and has the consistency and look of thick plastic. Both sides agree that this temporary fencing is not attractive by most standards.

Because of the hedge, the fence is not visible from the Defendant’s side of the hedge but is an eye-sore for the Prosecutor. The Defendants claim that the only reason they used this fencing was to establish a ‘safe passage’ or walkway within the boundary of their property where they could avoid being charged with trespassing while in the process of maintaining their hedge. ( 8 ) Needless to say, the placement of this ‘unattractive’ fence, clearly visible to the Prosecutor only served to inflame the dispute and acrimony rather than solve the problem.

At one point the Prosecutor out of anger and/or frustration, attempted to physically remove the fence herself. Police were called to the site where they advised the Prosecutor to leave the fence alone. ( 9 ) Sometime later in that same year, the Prosecutor contacted and consulted with the Regional Municipality of Brampton and as a result, was sent the division Fencing By Law, 172-2006 which set out the terms and conditions in which neighbours and residents are to erect, maintain and pay for fences within the municipality.

Based on her conversations with the Municipality officials, the Prosecutor adopted a new strategy to rid herself of the unattractive, orange fence and stop the intrusions on her property by the Defendant by constructing a more permanent form of fencing to divide the two properties. ( 10 ) Along with the By-Law cited above, the Municipality provided a 13 page document titled “ Procedures under By- Law 172-06 “The Division Fence By-Law”” .

This document admitted as Exhibit 7 (see below) set out a number of fairly detailed steps that one had to follow in order to comply with the By-Law and to promote their legal interests in obtaining compensation from passive or uncooperative neighbours for a portion of the cost of fencing that border shared property lines. ( 11 ) In brief, this thirteen page document provided the public or applicant with the following general headings:

(a) “ Attempt to Reach an Agreement” - which includes reference to a free community Mediation service that applicants may wish to contact; (b) “ No Agreement –Proceed as Per By-Law “ In this step, applicants are provided information on how to construct a letter otherwise known as a Notice of Intent which amongst other things, provides for obtaining three quotes for a fence, notice provisions and highlighting the right or the ability of the passive neighbour to obtain their own quotes for the construction of the fence. In detail, it blueprints how an unrepresented applicant should proceed with their paperwork in order to follow the By-Law to the Letter; (

c) In step three, the Municipality provides further advice on “ Recovering the Cost of Building the Fence” as per the By-Law. This

section provides for notice periods to be adhered to and gives limiting dates upon which the passive or uncooperative neighbour must reply to the demand letters for payment of their share of the fence total costs; (

d) Should step (

c) above be unsuccessful, the letter advises the applicant on how to proceed under the heading” Initiating a Prosecution to Recover Proportionate Share of Cost of Fence.” At this juncture the Municipality in this letter first introduces the concept of obtaining legal advice to assist in proceeding with the issuance and prosecution of a charge under this specific By-Law. In the following three pages (pg. 9 to pg. 11) of the Municipal letter, eleven steps are given to the applicant on how to compile evidence to support the charge, obtaining an Information and summons, swearing the Information and then telling the applicant what is expected and what will occur on, and up to the Trial Date; (

e) The final portion of the package of information sent or given to the applicant consists of “ two sample letters” that are to be prepared by the applicant and delivered properly to the passive neighbour giving notice of the construction of the proposed fence. If no reply to this letter is obtained, then it advises conveying the threat of legal action under the jurisdiction of this By-Law. ( 12 ) On August 6 th , 2009, the Prosecutor Moogk sent a Notice of Intent by registered mail and by regular mail to the Defendants, substantially following the advice given in the above Procedures document.

She contended that the Post Office verified or confirmed delivery of this Notice on August 7 th , 2009. ( 13 ) On August 20 th , 2009 the Prosecutor called Roma Fencing who recommended that a survey be done prior to construction. That survey was completed on August 20, 2009. ( 14 ) On September 17 th , 2009 a registered letter was sent to the Defendant (Exhibit 4) notifying them of the completion of the border fence and requesting/demanding one-half payment as per the By-Law.

The Prosecutor completed the fence from the front of the property to the back along the entire length of the property but did not seek payment for the rear eight-foot

section of fencing. She owned a swimming pool and she felt she would have been required to complete and pay for that

section of the fencing herself. Ms. Moogk netted the cost of that

section out of the total cost and asked for 50% of the balance of the costs. The total cost of the remaining 37 foot

section of fence amounted to $1648.00 (which included the cost of completing the survey) and the Prosecutor made demand for a 50% portion or $824.30 from the Defendant. ( 15 ) The fence constructed was a solid, pressure-treated wood privacy fence that was approximately three feet high at the front of the property and graduated to six feet in height at the back of the property where the pool area was contained. ( 16 ) On December 11 th , 2009, the Prosecutor re-sent the demand letter and asked for proportionate cost reimbursement.

The letter threatened that if the funds were not obtained within 30 days, that she would proceed with an action to recover costs (Exhibit 5). During this Trial, it was made clear to the Court that there were no civil actions in process.

The Prosecutor is hopeful that the By-Law enforcement if granted by the Court will force the Defendant to pay for their share of the total costs of erecting this boundary fence. ( 17 ) The Prosecutor attended the Ray Lawson Provincial courthouse on January 21 st , 2010 and swore to an Information charging that the Shouldises (the Defendant) failed to pay 50% of the cost of the property line fence under the City of Brampton’s Line Fences Act, 172-2006 (though it is essentially under the Brampton By Law 172-2006). The appropriate summons was sent out to the Defendant.

On March 17, 2010 the matter was adjourned in order to

schedule a Judicial Pre-Trial, completed on June 22, 2010. Following the Pre-Trial, the matter was returned for Trial on August 13, 2010 with the Court’s decision delivered on today’s date, December 3 rd , 2010.

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B) Other Evidence at Trial ( 18 ) The following Exhibits were tendered at Trial to support each party’s position: (

a) Exhibit 1: Photographs taken by Prosecutor showing orange plastic construction type fence. (

b) Exhibit 2: Notice of Intent letter, August 6, 2009 written by Prosecutor (

c) Exhibit 3: Prosecution tendered quote letters for the building of the shared property line fence. (

d) Exhibit 4: Prosecutor letter to Defendant dated September 17, 2009 follow-up to August 6 th , 2009 (

e) Exhibit 5: Breakdown of Costs for Roma Fence Invoice (

f) Exhibit 6: Prosecution tendered photograph showing shared property line and orange snow fence. (

g) Exhibit 7: Certified copy of the By Law 172-2006 for City of Brampton. (

h) Exhibit 8: Prosecution tendered letter showing costs of four foot Chain Link Fence (not previously given to Defendant.) (

i) Exhibit 9: Photographs entered on consent by the Defendant showing historical perspective. (

j) Exhibit 10: Character reference letters from other neighbours tendered by the Defendant. (

C) The Prosecution’s Position ( 19 ) This is a Private Prosecution mounted by Ms. Moogk an unrepresented prosecutor operating under the advice given to her from the Municipality under the jurisdiction of the By-Law 172-2006. The Prosecution’s position is that it has proven beyond a reasonable doubt that the Defendant has offended Brampton By-Law 172-2006 and as such, asks the Court to render a conviction on its behalf in order to compel the Defendant to pay for their 50% share of the total cost of the fence along with any penalties that the Court sees fit to impose. The Prosecutor asks the Court to consider

Section 15 and possibly

Section 16 of that By-Law which are reprinted below. Enforcement

Section 15 – Every person who contravenes any of the provisions of this by-law is guilty of an offence and on conviction is liable to pay a fine, exclusive of costs, and such other penalties as may be provided for or imposed under the Provincial Offences Act, R.S.O. c.P.33, as amended.

Prohibition Order

Section 16 - When a person has been convicted of an offence under this by-law, the court may, in addition to any other penalty imposed on the person convicted, (

a) issue an order prohibiting the continuation of repetition of the offence or the doing of any act or thing by the person convicted directed toward the continuation or repetition of the offence; and/or (

b) as a condition in any probation order, prescribe that the person convicted pay compensation or make restitution (

D) The Defendant’s Position ( 20 ) The Defendant claims that the fence that was constructed is not on the property line according to its own survey completed on May 30 th , 2004. The Defendant asked the Court to consider that the subsequent asphalting of the Prosecutor’s driveway caused that driveway to encroach onto the Defendant’s property. The Defendant further claimed to have corroborating evidence from companies and/or individuals who had attended the site subsequent to the fence completion and offered opinion that the fence was not properly situated on the property line.

These professionals were apparently professional fence builders (not surveyors) but were not tendered as witnesses in this Trial. ( 21 ) The Defendant offered uncontroverted evidence that subsequent to the asphalting of this driveway, they employed Counsel who was to file a Motion in the Superior Court we assume based on Adverse Possession Law. That Motion was marked abandoned due to the Defendant’s claim that their Counsel did not attend on the date set to hear the Motion and they further claim that their matter was mismanaged by their Counsel.

They claimed that they are before the Law Society to complain about the representation they received and the monies they paid.

Being unrepresented in this Trial, they were unclear as to whose Motion it was and to what jurisdiction the Motion pertained, however the Court has inferred given their testimony that the Motion had to do with Adverse Possession or Occupation given their belief that the Motion had a 10 year time limit and given their argument respecting the driveway and property line. ( 22 ) The Defendant argued that the Prosecutor had harassed their mother (the original owner of the property and current co- habitant) on many occasions simply due to the fact that they wished to maintain the hedge at the front of the property.

When they attempted to do the maintenance work, the Prosecutor would often call the police and attempt to have them charged with trespassing or attend the Defendant’s house herself and begin to shout and upset the household. At one point they claimed that the Prosecutor charged their brother with “ Stalking” in 2009 and Police were consulted. At the time, the Police recommended that the Prosecutor file charges. It is unclear how these charges were dealt with, but the Court was told they are no longer outstanding.

The constant harassment the Defendants say they faced, led them to try to find a solution to the hedge maintenance problem by erecting the orange construction style plastic fence to create a safe passageway in which they could comfortably attend to service the hedge and avoid the threat of being charged with trespassing. ( 23 ) The Defendant’s first witness under oath was Mrs. Rita Fabiano. She claimed to have been in the fencing business for over 22 years and currently works with Bolton Fencing Ltd. She testified that she knows how to read a survey and in her career, has handled many fence line disputes.

She said she understood By-Laws, provides quotes all of the time and claimed that the Brampton By-Law mentions a 4 ½ foot fence as the standard yet in the front of the property the fence height must be restricted to a 3 foot maximum. She pointed out that this fact is not found anywhere within the Brampton By-Law. Mrs. Fabiano claimed that although Roma Fence was utilized to build the fence, she implied that the fence company mismanaged the dispute they knew existed. Mrs.

Fabiano agreed that she was not a surveyor and her company was not one of the bids obtained for the construction of the fence. ( 24 ) The Defence’s second witness was Ms. Julia McLean, a neighbour of both parties since she and her family moved into the neighbourhood on July 31 st , 2008. She recalled that Mrs. Mona Shouldise, the Defendant’s mother asked her to help cut the hedge. On one particular occasion Ms. McLean recalled Mona Shouldise had asked her if she would approach the Prosecutor directly and ask her to move her car parked in the driveway so that Ms. Shouldise could trim the hedge. ( 25 ) Later, Ms.

McLean said that she observed Mona Shouldise cutting the hedge in between the orange snow fence and the hedge

itself and noticed that some of the clippings had fallen onto the Prosecutor’s driveway. Ms. McLean recalled that earlier, the Prosecutor told Ms. McLean to not worry about the clippings until her return from her errand. However, despite this advice, Ms. McLean said that upon Ms. Moogk’s return, she attended the Shouldise residence and ‘screamed’ at Mona Shouldise over the hedge clippings on her driveway. ( 26 ) Ms. McLean testified that she sensed mounting fear on the Defendants part. She offered to help deal with the situation as best as she could. Ms.

McLean later reconsidered and though she sympathized with the Defendant, she said she did not wish to ‘ bring the acrimony across the street to where she resided .’ At one point Ms McLean observed the Prosecutor angrily pulling at the orange construction fence. Ms. McLean said that she was well aware of the ongoing survey dispute between the two neighbours. In Ms Mclean’s opinion, she felt that the paving of the Prosecutor’s driveway had gone beyond the property line and over onto the Shouldise property by 3 to 5 inches. ( 27 ) Under cross-examination, Ms.

McLean testified that the distance between the hedge and the orange snow fence was erected with enough clearance to allow one person to travel back and forth whilst remaining on the Defendant’s property. ( 28 ) The next witness for the Defence, Ms. Christine Longworth (sister of the Defendant) testified that the police were called on many prior occasions and had offered to help mediate after interviewing both sides. They assigned a community police liaison to mediate in an effort to help deal with the stress and divisive nature of the situation. Ms.

Longworth also claimed that the survey pegs placed on the property at the back of the lot had been moved by the Prosecutor’s fence-builder without consent or notice. ( 29 ) A photograph tendered as Exhibit 9 gave the Court some historical perspective and showed that there was an old fence on the property line for a portion of the shared border.

It was not clear if this older fence was still standing when the new fence was constructed. ( 30 ) In its summation the unrepresented Defendant, asked the Court to find that they share no responsibility for the cost of the fence - a project that was undertaken as the result of a unilateral decision made by the Prosecutor. Furthermore it asked the Court to consider that they have their own survey which shows that the fence is not on the shared property line.

Though they did not specifically state as much, (being unrepresented) the Court inferred that the Defendant wished the Court to conclude that the Prosecution had not proven their case beyond a reasonable doubt and to find the Defendant not guilty of the charge (

E) Legal Considerations Jurisdiction & Case Law Considerations R. vs. W.D. (D.W.) 1991 CanLII 93 (SCC) , 63 CCC 3d 397 S.C.C. R. vs. Lifchus, SCC, 1996 CanLII 6631 (MB CA) , 107 C.C.C. (3d) 226 Provincial Offences Act, R.S.O. 1990, c. P.33 . Brampton By-Law 172-2006 McFarlane v. Safadi et al. 2004 CanLII 12644 (ON CA) , [2004] O.J. No. 1763 , heard Court of Appeal, April 30, 2004 Morley v. Canada [2006] F.C.J. No. 741 R. v. Welsh [1983] N.S.J. No. 139 R. v. Rijal

(2010) O.J. No. 3440 R. v. Saeed (2010) 2010 ONCJ 251 (CanLII) , O.J. No. 2860 Acts and Cases consulted for background information only : Limitations Act, R.S.O. 1990 Masidon Investments Ltd. v. Ham* 1984 CanLII 1877 (ON CA) , [1984] O.J. No. 3139 Peters vs. Palmer [2000] O.J. No. 2560 ; decided SCJ 2000

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F) Issues • As with all of the trials the Court must hear and assess, the Crown or Prosecutor bears the responsibility of proving their case beyond a reasonable doubt and that burden never shifts to the Defendant. The Court asks itself, have they been successful in meeting this standard for each of these charges? • Fence By-Law 172-2006, City of Brampton, passed by City Council June 12, 2006. • Judicial questioning at Trial for unrepresented parties – extent and nature of questioning • Proper filing of notices and documents by the Prosecutor to the Defendant and to the Court under this By-Law and under the Provincial Offences Act . (

G) Analysis ( 31 ) This is a case in which two reasonable, law abiding families who were friends and neighbours for many years have seen their relationship deteriorate. This acrimony has resulted in stress, anger, time and cost for both parties and has negatively impacted their ability to live side by side in relative peace and harmony. The parties have had many opportunities to reconcile or at least to mediate their differences in an amicable way by both the police and this Court.

The Court notes that this was accomplished through the efforts of the police community service officer, through a Judicial Pre-Trial and in this Court’s granting of a recess so that the Parties could communicate one last time before proceeding with the Trial. None of these measures proved effective. They ask the Courts to resolve their dispute by way of a trial. Unfortunately, this Court does not have the power or the expertise to repair fractured trusts.

Though it can offer sympathy to both parties for their predicament, this Court can and must only focus on the jurisdiction it has-which in this case is to consider and decide the fate of a private prosecution between both unrepresented parties. ( 32 )

Section 23 of the Provincial Offences Act (R.S.O. 1990. C.P.22. s.23(1)) states: Any person who, on reasonable and probable grounds, believes that one or more persons have committed an offence, may lay an information in the prescribed form and under oath before a justice alleging the offence and the justice shall receive the information. R.S.O. 1990, c. P.33, s. 23 (1) . Procedurally the carriage of Private Prosecutions must be similar to the Criminal Courts where an individual may swear an Information charging another entity with an Offence.

Following an ex-partie hearing on the matter, a Justice being satisfied that some evidence is received on all essential elements may refer the matter to a set date court at which point the Provincial Crown will decide whether or not to take carriage of the charge. In some instances where the Crown deems no merit in proceeding with a prosecution, the Crown sometimes will take carriage and then act under its jurisdiction to ask the Court to stay the charge or to withdraw the charge.

When the Crown makes the determination not to be involved, then the Informant has the option of continuing with the Prosecution or it may abandon it. Normally, the Crown will make such an assessment on the merits of the case and on the evidence taken in order to decide whether or not they wish to be involved. Each case is assessed on its own merits. ( 33 ) This case is a private prosecution under the Provincial Offences Act , a more rarely seen event in this jurisdiction.

Interestingly, the Brampton Prosecutor has informed the Court that it would be equally rare for the Municipality to be involved in the Prosecution of this By-Law. As a result, the Court is potentially staffed with unrepresented Defendants as well as unrepresented Prosecutors. ( 34 ) Even though unrepresented, it appears from the comments made by the Prosecutor along the way, that it had been receiving advice on how to conduct its case from the Municipality. Additionally, it was given the requisite By-Law and a copy of the recommended procedures to follow as well as sample letters to send out to the other party.

One wonders if this assistance could be

perceived by some private residents as sometimes crossing the line between procedural assistance and legal advice. ( 35 ) The By-Law interestingly attempts to define a cost-sharing arrangement for parties that cannot otherwise reach agreement. It sets up a two-tier cost sharing responsibility depending on who that neighbour might be. In the event that one’s neighbour is a private citizen then the cost within prearranged guidelines is 50% for each neighbouring party.

Should the Municipality be one of those neighbours then the cost of the fence is shared differently with 95% being the responsibility of the private citizen and 5% belonging to the Municipality. ( 36 ) The Instructions that accompany the By-Law indicates that in the event that a not guilty plea is tendered, the unrepresented party may attend the Court on their trial date and proceed with their trial. In Point 8 on page 10 of 13 where these procedures are explained, the Municipality provides the individual with information on how a trial will unfold.

Such instructions are normally those provided by the Court in the presence of both parties at the beginning of a Trial. They may vary depending on the situation and the level of competence of the parties. The variety and depth of content is currently the subject of some case law before the Courts. (R. v. Rijal

(2010) O.J. No. 3440 and R. v. Saeed (2010) 2010 ONCJ 251 (CanLII) , O.J. No. 2860 .) The instructions normally provided by the Court would include the right to object, the right to declare a non-suit if the essential elements are not present etc...These particular instructions are not provided by the Municipality in their letters to the Prosecutor. ( 37 ) Additionally, these procedures are given only to one party, the person acting as Prosecutor. As such, one wonders whether or not a potential perceived prejudice has been established?

This Court has had some difficulty understanding what role the Municipality wishes to play in such Trials. Do they wish to remain a passive voice in these matters or do they wish to help train private residents to mount their own Prosecutions? Do they wish to represent two ratepayers equally or does the Municipality see its role as being that of Prosecutor and not objective or passive?

Should Trial explanations be left to Counsel/Agent and/or the Courts or should the Municipality seek to provide their own trial explanations to the Prosecutor ahead of the Trial? ( 38 ) Though these questions cross the Court’s mind, it is the Court’s belief that instructions provided to the Prosecutor are probably given in the spirit of assisting the unrepresented Prosecutor. This assistance is a duty and considered by many to be a privilege in their roles as public servants.

Such procedures if followed have the added, intended benefit of streamlining or minimizing issues that might otherwise arise on the Trial date. There is no requirement in law that compels the Municipality to be objective in their stance. Municipalities often assume the role of active prosecutor in most POA matters. The Municipality can choose to remain passive or become active in whichever prosecutions it wishes to pursue. This matter would represent no different a set of circumstances.

The Court has no jurisdiction to compel the Municipality or the Prosecutor to adhere to the case law instructions for Trial meant for the Bench nor can it comment on whether such instructions are in conflict with this case law. ( 39 ) Certainly, though not overtly stated in the By-Law itself, the basic elements of such an Offence would need to include evidence satisfactory to the Court as to ownership of the respective properties to ensure the proper individuals are before the Court.

A certified copy of the By-Law in question would also need to be provided to the Court as well as the Court being satisfied that a fence is constructed in accordance with the By-Law, on a shared property line and proper notice of intent being served by the Prosecutor to the Defendant. In the regulatory Courts, it is widely accepted that the standard should be substance over form and that

Section 34 of the POA provides for the possibility of making changes to the Information to make such Information consistent with the evidence taken. The Court must always keep in mind before granting such motions the circumstances of the case, the evidence taken, any potential injustice and any prejudice that might result to either party.

In this prosecution it was clear to the Court that the Prosecutor did not complete the following as required: Firstly the prosecutor did not serve notice to the Defendant under the By-Law as to the total cost of a basic, 4 foot high 1 ½ inch mesh, steel chain link fence as required by the By-Law. Instead the notice sent was for a 6 foot high graduated wood fence; Secondly the Prosecutor failed to follow the instruction of the Municipality on Step 3, on page 9 of 13 of its procedural steps to follow which essentially indicated that the Information and the Summons should be prepared referencing the penalty

section of the By-Law (section 15); Thirdly the Prosecutor offers the Court a property assessment notice that she wishes accepted as a legal document and proof of legal ownership of the property in Brampton. This document which is neither accompanied by an affidavit, not signed by any official, and is a photocopy. According to the Prosecutor, when she requested the document be certified or attested to, she was told by officials of MPAC that there is no such process for certifying or signing such documents and ‘ such notices are all the Courts should require .’

( 40 ) In this particular case, the Court weighed the decision on whether or not to proceed with the trial for each of given each of the above exceptions whilst considering all of the circumstances, including any prejudice to the Defendant and whether or not any injustice would result. In the case of the wrong notice being sent out, it was clear to the Court that the new notice which should have given to the Defendant showed that they owed a lower amount of money, in fact, $631.91 (see Exhibit 8) instead of $824.30. Prior knowledge of the lower amount would not have altered the Defendant’s preparation of its defence. In the Second case, the penalty

section of the By-Law is not an element of the charge and though preferable to have on the Information is also not a fatal flaw that would lead to an injustice or a prejudice being created in the Court’s opinion. Finally in the third instance, the Court was able to confirm through viva-voce evidence that the respective owners to the subject properties were properly before the Bench and that we would accept this evidence along with the MPAC notice of assessment to speak to the essential element of ownership.

We do however do not agree with the supposition that a certification or an affidavit does not have to be tendered to satisfy the higher level of detail and certainty normally required in a Court, consistent with the rules of evidence. If the Prosecutor is correct in its recollection of these conversations with officials, one wonders why such certified copies cannot be presented to the Court for a Trial? The Court prefers instead to hold to the notion that the Prosecutor has perhaps not interpreted these communications correctly.

Though the Prosecutor was articulate and appeared organized in their presentation of their evidence, there were many steps to follow, there was a significant volume of paperwork to keep track of and many procedures to keep in mind, a daunting task for the uninitiated. Having said this, the Court believes that in a Regulatory Court, substance should govern over form , all else being considered. Both Parties wish to pursue this matter to its conclusion and to dismiss based on improper form would not be in the interests of justice in the Court’s opinion.

In other words, the injustice of dismissing would outweigh the injustice of not proceeding with the Trial in this Court’s opinion. The Court has permitted the documents to enter the trial as evidence on behalf of the Prosecution. ( 41 ) Let us now turn next to the evidence of the fence construction and proper placement of that fence . In By-Law 172-2006, the Municipality defines a division fence as a fence that marks the boundary between adjoining parcels of land. (Definition 2b, page 2 of 13). There are no other

definitions of the boundary or the division fence contained therein. The Court must infer that the boundary between two properties is the legal boundary that is normally established by way of a properly completed Survey. Neither the Prosecution nor the Defendant has tendered their survey of the property. There are no affidavits and no viva voce evidence from Roma Fencing, the fence builder, or other fencing or survey professionals that the fence was erected in the proper location using local survey markers. Other than the assertions made by each Party, the only evidence came from the Defence witness Ms.

McLean who told the Court that in her opinion the fence was not located on the border and encroached on the Defendant’s property. Both parties claim to have had their own survey completed by a professional; one in 2004 and the other in 2009. If true, then both are considered relatively recent and assumed valid. However to repeat, these two surveys are not before the Court. This would not have been a significant issue if both parties agreed that the fence was erected on the property border and only the monetary payment was in dispute.

In this matter, the money appears to be secondary to the underlying issue that the fence may or may not be erected in the right location. The Court has also considered that even if both surveys were tendered into evidence, would those surveys be sufficient to establish beyond a reasonable doubt that such a fence was indeed constructed on the boundary line?

In other words, there is no clear evidence before the Court provided by any individual attesting to the fact that the fence and the legal boundary line are found in the same location. ( 42 ) Both parties appear to this court to be honest and convinced their respective positions represent the truth. The Court has also had an opportunity to assess their demeanour. There remains then, two versions that could be true and cannot be reconciled by the evidence this Court has been given.

This might or might not be corroborated by the uncontroverted assertion that there was a Motion which was handed to the Court, but not made an exhibit, that might have been placed before the Superior Court at some juncture. That matter did not commence and was marked abandoned most likely due to the applicant not being present at the time the matter was addressed. This is consistent with the Defendant’s viva voce evidence that the asphalting of the Prosecutor’s driveway encroached on the Defendant’s property.

In the mind of the Defendant, this represents an unresolved dispute at this time though the Superior Court would have properly endorsed this as abandoned given the Defendant’s recollection of what transpired at the time. Even if this Action provided some corroboration to the Court and was accepted, in its current form, it would not remove all reasonable doubt. ( 43 ) Given the two credible versions, the Court turns to R. vs. W. D (D. W) 1991 CanLII 93 (SCC) , 63 CCC 3d 397 S.C.C. where it must consider the following: (

a) if the Court believes the Defendant then the Court must acquit; (

b) if the Court does not believe the testimony of the Defendant but is left in reasonable doubt by it, we must acquit; (

c) Even if the Court is not left in any doubt by the evidence, the Court is compelled to ask itself whether, on the basis of the evidence which the Court does accept, the Court is convinced beyond a reasonable doubt by that evidence of the guilt of the Defendant of the charge before the Court. The fundamental principles of reasonable doubt are outlined in the case of R. vs. Lifchus, SCC, 1996 CanLII 6631 (MB CA) , 107 C.C.C. (3d) 226

( 44 ) This Trial has featured an unrepresented Defendant and an unrepresented Prosecutor. As a result, both parties have required assistance from the Court at various junctures. Despite that ongoing assistance and the many questions of clarification from the Bench, it became apparent that the Court needed to remind the parties that the Court could not assist them beyond a particular point or help them with their cases. The Court must always be aware of that delicate balance between helping the parties and remaining impartial adhering to their role as a careful and impartial listener.

In this particular case, the Bench was much more vocal than in a normal trial situation to answer questions, to clarify points, to calm the parties down and to give some direction without offending the rule of impartiality. The Court has considered its position carefully using some of the principles found in McFarlane v. Safadi et al. 2004 CanLII 12644 (ON CA) , [2004] O.J. No. 1763 , heard Court of Appeal, April 30, 2004; Morley v. Canada [2006] F.C.J. No. 741 ; and R. v. Welsh [1983] N.S.J. No. 139 .

In paragraph 31 of the McFarlane decision, the Court of Appeal indicated that, “ The hallmark of a fair trial is that the judge preside with impartiality and neutrality between the parties. The judge must not cross the line and become a participant in the litigation. When he or she does so, his or her impartiality and neutrality are lost.

It is at that moment that the trial ceases to be fair.” One of the most essential matters in a Judge’s questioning is that if it goes beyond clarification and could be interpreted as prejudicial or as investigatory helping one side prosecute or one side defend, then the trial can no longer be seen to be fair. This can occur despite the intention of the questioning it can merely arise as an apprehension of bias or inadvertently taint the role of being a patient and impartial listener .

In this particular case, though there were many questions posed by the Bench, the Court remained satisfied that the questions were necessary only to clarify evidence and did not to favour either party. The Court does not believe that such questions would be perceived as entering the fray , despite the invitations of the parties to do so at various junctures. Hopefully the parties will have a better understanding why that cannot and must not happen to ensure impartiality be maintained.

This is more challenging when two unrepresented parties with no court experience approach a Trial situation, especially when both parties constantly implore the Bench for assistance. ( 45 ) Finally, as the parties are unrepresented and since the Superior Court Motion was delivered to the Bench but not made an Exhibit in this Trial, the Court felt compelled to address this matter briefly. The Defendant and the Prosecutor appear to have an unresolved dispute which was to have been before the Superior Court some time ago.

Both parties had little information to offer except to say that it had to do with a property boundary dispute and there was a 10 year limitation rule involved. The Court infers that their claim may have had to do with property principles outlined in Adverse Possession. This may or may not be the issue that the Defendant and Prosecutor were going to argue in the Superior Court some time ago. The parties should understand that if the Motion is marked abandoned then the Courts in a certain sense consider the matter completed and not ‘in process’ or under dispute.

They should also understand that this particular Court has no jurisdiction or competency to deal with that matter. Should they wish to continue their investigation of such matters, the parties are both well advised to seek Legal Counsel and they must approach the proper, competent Court of jurisdiction in order to further their causes and/or to resolve their ongoing property disputes. (

H) Decision of the Court ( 46 ) Given the guidance provided by case law as well as the other evidence given to the Court, and considering the credibility of both parties the Court is left with some reasonable doubt and must find the Defendant not guilty of offending Brampton By-Law 172- 2006. G. Manno December 3rd, 2010