Corporation (City of Brampton) v. Mair, 2011 ONCJ 358

Citation: Corporation (City of Brampton) v. Mair , 2011 ONCJ 358 IN THE MATTER OF City of Brampton Bylaw No. 270-2004 (Zoning) And the Planning Act, R.S.O. 1990, c. P.13 . Between The Corporation of the City of Brampton prosecutor and Robert Mair and Sharon Lewis defendants Ontario Court of Justice Brampton, Ontario Quon J. P.

Reasons for Ruling on Motion for Non-Suit Trial held (prosecution case only): April 20, 2011 Ruling rendered: July 6, 2011 Charges: For the defendant, Robert Mair: • Using or permitting the use of lands for purposes not permitted by s. 10.9.1 of Brampton By-Law 270-2004, namely, having a driveway in the rear yard which does not lead to a garage, contrary to s. 2.2 of City of Brampton By-Law 270-2004 and s. 67(1) of the Planning Act , R.S.O. 1990, c. P.13. For the defendant, Sharon Lewis:

• Using or permitting the use of lands for purposes not permitted by s. 10.9.1 of Brampton By-Law 270-2004, namely, having adriveway in the rear yard which does not lead to a garage, contrary to s. 2.2 of City of Brampton By-Law 270-2004 and s. 67(1) of thePlanning Act, R.S.O. 1990, c. P.13. Counsel: P. Cassata, prosecutor for the City of Brampton L. Pandy, counsel for the defendants Cases Considered or Referred To: R. v. Fontaine (2004), 2004 SCC 27 , 18 C.R. (6th) 203 (S.C.C.). R. v. Jarvis, 2002 SCC 73 , [2002] 3 S.C.R. 757, [2002] S.C.J. No. 76 (QL) (S.C.C.).

Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27 (S.C.C.). Statutes, Regulations and Rules Cited: Legislation Act, 2006, c. 21, Sched. F, s. 64(1). Provincial Offences Act, R.S.O. 1990, c. P.33, s. 47(3). Planning Act, R.S.O. 1990, c. P.13, ss. 34, 67(1). Bylaws Cited: The Corporation of the City of Brampton Bylaw No. 270-2004 (Zoning), ss. 2.2, 5.0, 10.9.1(D). Reference Material Considered or Cited: Barber, K., ed., The Canadian Oxford Dictionary (Don Mills, Ontario: Oxford University Press, 1998), p. 1003.

Paciocco, D.M. and Steusser, L., The Law of Evidence, 5ed. (Toronto, Ontario: Irwin Law Inc., 2008), p. 538.

Sullivan, R., Statutory

Interpretation ( Toronto, Ontario: Irwin Law Inc., 1997 ), pp. 54, 134, 137. The Oxford Dictionary of Current English (Oxford University Press), p. 654. Webster’s II: New Riverside Dictionary (New York: Berkley Books). Exhibits entered: Exhibit "1a" - Photograph taken on February 2, 2009, of front driveway of 25 Church Street E., Brampton, by Steve Brown, property standards officer for the City of Brampton. Exhibit "1b" - Photograph taken on February 2, 2009, of front driveway of 25 Church Street E., Brampton, by Steve Brown, property standards officer for the City of Brampton.

Exhibit "1c" - Photograph taken on February 2, 2009, of rear driveway of 25 Church Street E., Brampton, by Steve Brown, property standards officer for the City of Brampton. Exhibit "1d" - Photograph taken on February 2, 2009, of ploughed rear of 25 Church Street E., Brampton, by Steve Brown, property standards officer for the City of Brampton. Exhibit "2a" - Copy of one page letter from Marco Taraborrelli, Plans Examiner – Zoning, dated September 26, 2006, sent by registered mail to Sharon Lewis and Robert Mair, re: Paving In The Rear Yard, 25 Church Street E., Pt.

Lot 83 Plan BR 2, indicating the property is zoned R2B(1) and subject to Bylaw 270-2004 and that a recent inspection by the Bylaw Enforcement Department revealed a “paved” driveway in the rear yard not leading to a garage, which is not permitted and that the driveway in the rear yard had to be removed by no later than October 17, 2006. Also, letter informed Sharon Lewis and Robert Mair that they were required to contact Property Standards Office to arrange a re-inspection by October 17, 2006, to confirm compliance with zoning bylaw.

Exhibit "2b" - Copy of one page letter from Carmen Caruso, Plans Examiner – Zoning, dated November 28, 2007, sent by registered mail to Sharon Lewis and Robert Mair, re: Paving In The Rear Yard, 25 Church Street E., Pt. Lot 83 Plan BR 2, indicating the property is zoned R2B(1) and subject to Bylaw 270-2004 and that a recent inspection by the Bylaw Enforcement Department revealed a “paved” driveway in the rear yard not leading to a garage, which is not permitted and that the driveway in the rear yard had to be removed by no later than December 19, 2007.

Also, letter informed Sharon Lewis and Robert Mair that they were required to contact Property Standards Office to arrange a re-inspection by December 19, 2007, to confirm compliance with zoning bylaw. Exhibit "3a" - One page with three photographs taken on October 27, 2009, of rear yard and driveway of property at 25 Church Street East, Brampton, by Steve Brown, property standards officer for the City of Brampton.

Exhibit "3b" - One page with two photographs taken on October 27, 2009, of rear and front of property at 25 Church Street East, Brampton, by Steve Brown, property standards officer for the City of Brampton. Exhibit "4" - A package of 10 pages of documents comprising of zoning report for 25 Church Street East, Brampton (4 pages) and excerpts of City of Brampton Bylaw 270-2004 (Zoning) (6 pages). Exhibit "5" - A document of four pages that includes three-page certified true document from Ministry of Government Services of names of owner of property described as Lot 6 &

Part Lots 5 &7, Block H, Plan BR26 in R01034266; T/W R01034266; Brampton, prepared on 2009/10/28 at 08:43:31 (14126-0145(LT)) and one page of 2008 Assessment Roll dated May 28, 2009, for property located at 25 Church Street East (Plan BR 2 PT LOT 83), indicating a lot size of 10585.74 square feet, with 43.00 front and 246.18 depth.

1. INTRODUCTION [ 1 ] This case involves property owners who have been charged with contravening a provision of the City of Brampton Zoning Bylaw for having a driveway in the rear yard of their property, which does not lead to a garage. At the end of the prosecution’s case, the defendants brought a motion for non-suit. Although the facts in this motion for non-suit at first glance seem relatively simple, its resolution is anything but straightforward.

Resolving this matter requires interpreting the meaning of a word amid a battle of dictionaries, determining what the actual contravention is that is contained in a particular provision of a zoning bylaw, and ascertaining who has the burden of proving the non-existence of something. [ 2 ] In this matter, the defendants, Robert Mair and Sharon Lewis, have been charged as the registered owners of a residentially- zoned property located at 25 Church Street East in the City of Brampton, for not complying with a provision of the Zoning Bylaw on February 2, 2009.

Specifically, they have been charged individually for not complying with s. 10.9.1(

D) of City of Brampton Bylaw 270-2004 (Zoning), for having a driveway in the rear yard of their property which does not lead to a garage, thereby, committing an offence under s. 2.2 of Bylaw 270-2004 (Zoning) and of s. 67(1) of the Planning Act , R.S.O. 1990, c. P.11 . The rear yard of the defendant’s property is covered with gravel and motor vehicles have been observed parked in the rear yard on the area covered by gravel by an enforcement official. [ 3 ] Furthermore, this case has taken an inordinate amount of time to get to trial.

After several appearances and a non-appearance in assignment court and no-shows by the defendants on previous trial dates, the trial finally commenced on April 20, 2011. In the trial, after the prosecution’s case was completed, the defendants brought a motion for non-suit based on the question of whether a gravel- covered area in the rear yard of the defendants property is “paved” for the purposes of s. 10.9.1(D), which prohibits the rear yard of a residential lot that is less than 0.2 hectares to be paved for the purpose of parking motor vehicles, unless that paved area is a driveway that leads to a garage.

If a gravel-covered area is not a “paved” area for the purposes of s. 10.9.1(D), then the defendants’ motion would succeed. [ 4 ] After the motion for non-suit was argued, I reserved my decision and adjourned the matter to July 6, 2011, to render my ruling. These, therefore, are my written reasons of the ruling. 2. THE CHARGES [ 5 ] The defendants’ charges are as follows: Robert Mair of Brampton Ontario on or about the 2 nd day of February, 2009, at 25 Church Street East, described as

Part Lot 83, Plan BR2, in the City of Brampton, Regional Municipality of Peel did commit the offence of using or permitting the use of lands for purposes not permitted by s. 10.9.1 of Brampton By-Law 270-2004, as amended, namely, having a drive way in the rear yard which does not lead to a garage, contrary to s. 2.2 of City of Brampton By-Law 270-2004, and contrary to s. 67(1) of the Planning Act, R.S.O. 1990, c. P.13 , as amended. Sharon Lewis of Brampton Ontario on or about the 2 nd day of February, 2009, at 25 Church Street East, described as

Part Lot 83, Plan BR2, in the City of Brampton, Regional Municipality of Peel did commit the offence of using or permitting the use of lands for purposes not permitted by s. 10.9.1 of Brampton By-Law 270-2004, as amended, namely, having a drive way in the rear yard which does not lead to a garage, contrary to s. 2.2 of City of Brampton By-Law 270-2004, and contrary to s. 67(1) of the Planning Act, R.S.O. 1990, c. P.13 , as amended. 3.

BACKGROUND [ 6 ] The defendants, Robert Mair and Sharon Lewis, are the registered owners of a property zoned for residential use that is located at 25 Church Street East in the City of Brampton (see Ex. 5). The area of the property is 10,585.74 square feet. The lot measures 43 feet

at the front and 246.18 feet in depth (see Ex. 5). The mailing address for the owners is not the same as the address of the property in question (see Ex. 5). [ 7 ] An inspection of the defendants’ property was instigated after someone complained to the City of Brampton Property Standards Department about the driveway on the property at 25 Church Street East. Because of that complaint, Steve Brown, a Property Standards Officer, attended on February 2, 2009, at 25 Church Street East in the City of Brampton.

Brown had entered the defendants’ property from the front side or the Church Street East side of the property and drove his motor vehicle onto a driveway on the property, and then continued driving on that driveway, which eventually led to the rear of the property. In addition, Brown observed a motor vehicle parked in the rear yard of the defendants’ property and then took photographs of the property (see Ex. 1a, 1b, 1c, 1d).

Brown also observed that the rear yard of the defendants’ property had been ploughed of snow, the motor vehicle parked in that ploughed area, and that the rear yard was covered with gravel or small stones.

Brown then returned to his office and found two zoning letters on file that were apparently sent to the defendants, which were dated September 26, 2006 (see Ex. 2a) and November 28, 2007 (see Ex. 2b), that informed the defendants about the “paved” driveway in the rear yard of their property at 25 Church Street East and that it did not comply with Bylaw 270-2004 and that it had to be removed by a certain date and that they had to contact the Property Standards Office to arrange for a re-inspection of their property for compliance with the Zoning Bylaw.

Afterwards, Brown reported his observations to the zoning department for possible legal action. [ 8 ] Jim McColl, a Zoning Plans Examiner, then reviewed the photographs and information gathered by the Property Standards Officer, and based on those photographs and observations provided by the Property Standards Officer, McColl’s experience as a zoning official for 30 years, and McColl’s

interpretation of the zoning bylaw, McColl decided to charge the defendants for not complying with a provision of the City of Brampton Zoning Bylaw. [ 9 ] An information was then sworn on April 9, 2009, which charged the defendants individually with not complying with s. 10.9.1(

D) of Bylaw 270-2004 (Zoning), by using or permitting the use of lands for purposes not permitted, specifically, for having a driveway in their rear yard which did not lead to a garage, thereby committing an offence under s. 2.2 of Bylaw 270-2004 (Zoning) and s. 67(1) of the Planning Act , R.S.O. 1990, c.

P.11 . [ 10 ] Summonses were then issued to the defendants and left at the 25 Church Street East property notifying them to appear in court on May 20, 2009, for the present charges. [ 11 ] However, the defendants failed to appear on May 20 th , so the matter was then set down for an ex parte trial to be held on October 28, 2009. On October 28, 2009, counsel appeared for the defendants and the matter was then adjourned to December 9, 2009. However, on December 9, 2009, no one for appeared for the defendants, and the matter was once again set down for an ex parte trial to be held on March 24, 2010.

On March 24, counsel once again appeared for the defendants and the matter was once again adjourned to October 13, 2010 for trial. On October 13, 2010, the trial did not proceed as an agent appeared for counsel for the defendants and the trial was once again adjourned and the trial was rescheduled to April 20, 2011. [ 12 ] On October 27, 2009, Steve Brown, the property standards officer, attended the defendants’ property again and noted that nothing had changed with the rear yard of the property.

Brown also took photographs of the driveway as well as of the front and rear of the property (see Ex. 3a and 3b). [ 13 ] The trial finally commenced on April 20, 2011, with Robert Mair, one of the defendants, being present. After the prosecution’s case was completed, the defendants then brought this motion for non-suit. (

a) SUMMARY OF TESTIMONY FOR THE PROSECUTION’S WITNESSES

(1) Testimony of Steve Brown, a Property Standards Officer for the City of Brampton. [ 14 ] Steve Brown testified that he is a Property Standards Officer for the City of Brampton. He said that he had attended a residential property located at 25 Church Street East, in Brampton, on February 2, 2009, because of a complaint about a driveway that runs from the front to the rear of the property. He also said he had approached from Church Street and drove his vehicle 200 feet down into the rear of the lot. He said he then took four photographs and then dated, signed and put the address on them (Ex. 1a, 1b, 1c, 1d).

[ 15 ] In addition, Brown said he observed on that date that a large area at the rear of the property had been ploughed and that a vehicle was parked there. He said there had been one other vehicle plus his vehicle. Furthermore, he said that it appeared a landscape vehicle had ploughed or cleared the snow away. He further said the snow had been removed. He also said the driveway leads down into the ploughed area and back. Furthermore, he said he had driven on a hard surface and not on grass.

In addition, he said he did not see pavement or the driveway being made of pavement in the rear yard, but as shown in Exhibit 3b, he said he had observed in the rear yard a gravel or stone surface. He further said that the driveway to a certain point or one or two feet pass the back edge of the house was pavement or cracked-up pavement, but that the majority of it was gravel or stone. He also said the driveway looked like a regular driveway and was not made up of pavement in the rear yard, but consisted of a hard surface made up of stone or gravel, which is larger than sand.

He also said the stone or gravel was packed down for driving on and that no grass was growing up. [ 16 ] Afterwards, Brown said he then returned to his office and found out there were two zoning letters on file for the property that had been issued. He said that because of these two letters legal action then commenced. [ 17 ] Brown then described the contents of the first letter that was issued for the defendants’ property (Ex. 2a). He said that it had been issued to the defendants on September 26, 2006, and addressed to their mailing address and not to the address of the property at 25 Church Street East.

Furthermore, he said the defendants were informed in that letter that a recent inspection had revealed that there was a paved driveway in their rear yard that did not lead to a garage and that this use of the rear yard was not permitted under Bylaw 270- 2004.

The defendants were also informed that they had to remove the driveway in the rear yard of their property by no later than October 17, 2006, and that they also had to contact the Property Standards Office to arrange a re-inspection by no later than October 17, 2006, to confirm compliance with the Zoning Bylaw. [ 18 ] For the second zoning letter (Ex. 2b) , Brown said that it had been issued to the defendants on November 26, 2007, and addressed to their mailing address and not to the address of the property at 25 Church Street East.

The defendants were also informed in the second letter that a recent inspection had revealed that there was a paved driveway in their rear yard that did not lead to a garage and that this use of the rear yard was not permitted under Bylaw 270-2004.

The defendants were also informed that they had to remove the driveway in the rear yard of their property by no later than December 19, 2007, and that they also had to contact the Property Standards Office to arrange a re-inspection by no later than December 19, 2007, to confirm compliance with the Zoning Bylaw. [ 19 ] Brown also said he requested the prosecution but did not request which particular

section should be the basis of the prosecution, and it would be the zoning officer who would decide that issue.

(2) Testimony of Jim McColl, a Zoning Plans Examiner for the City of Brampton. [ 20 ] Jim McColl testified that he is a Zoning Plans Examiner for the City of Brampton, where he reviews drawings for compliance with zoning bylaws. In addition, he said he also prepares zoning notices to property owners so they can put their properties into general compliance. He also said he resides in the area where the property in question is located and has been around the area of the impugned driveway.

In addition, he said the property at 25 Church Street East is zoned “R2B(1)” and is for either use as a single family residence or multi-residential use, which also includes the property being used as a group home. [ 21 ] In addition, McColl said he would walk by the property at 25 Church Street East to go shopping. Moreover, based on his 30 years as a zoning inspector he opined that the driveway in question on that property did not fall within the condition or exception under s. 10.9.1(D), that it was a driveway that led to a garage. He also said the driveway had been driven on by a motor vehicle.

In addition, he said the area where the impugned driveway was located should have been used for residential landscaping with shrubs and a patio and not to be driven on by a motor vehicle. However, he also acknowledged that he did not himself personally inspect the property, but did observe the driveway being ploughed on February 2, 2009.

He also said he had based his opinion about the impugned driveway on the photographs he saw that were taken by Steve Brown and on the information from Brown’s Investigation. [ 22 ] Furthermore, to assist the court, McColl also calculated what 0.2 hectares was in square feet, since Exhibit 5 stated the property in question was 983.78 square feet. In making his calculations, McColl used the conversion formula of one square meter is equal to 10.76 square feet, which he said he uses regularly in his work.

He also said that 0.2 hectares is equal to 2000 square meters and that one hectare is equal to 10,000 square meters and then concluded that 0.2 hectares would then be equal to about 21,520 square feet. 4. APPLICABLE LAW

[ 23 ] To reiterate, the defendants have been charged individually as owners of a property located in Brampton for not complying with a provision of Brampton By-Law 270-2004 (Zoning), by using or permitting the use of lands for purposes that are not permitted by s. 10.9.1(D). In particular, for having a driveway in the rear yard of their property that does not lead to a garage. [ 24 ] Specifically, s. 10.9.1(

D) of Brampton By-Law 270-2004 (Zoning) provides that where a lot is less than 0.2 hectares in area, then the rear yard of that lot is not permitted to be paved if it is for the purpose of parking motor vehicles, unless the paved area is actually a driveway that leads to a garage, but as long as the driveway is not wider than the greater of either the width of the garage or three meters: 10.9 Parking Space Requirements 10.9.1 Parking spaces are required in Residential Zones in accordance with the following provisions … D.

For a lot less than 0.2 hectares, the rear yard for the purpose of parking motor vehicles shall not be paved other than a driveway leading to a garage permitted by this By-law and provided such a driveway in the rear is not wider than 3 meters or the width of the garage whichever is greater. [ 25 ] Furthermore, a “residential driveway” is defined in

section 5.0 of Brampton By-Law 270-2004 (Zoning) to mean a hard and level surface consisting of materials, such as asphalt, pavement, concrete, patterned concrete, compacted gravel and dirt, interlocking brick, or paving stone, so motor vehicles could be driven and parked on [ emphasis is mine below ]: “ DRIVEWAY, RESIDENTIAL shall mean the hard and level surface ( consisting of , but not limited to, asphalt, pavement, concrete, patterned concrete, compacted gravel and dirt , interlocking brick or paving stone) on detached , semi-detached or townhouse dwelling lots , and that hard and level surface on the road-right-of-way to the street edge, upon which vehicles drive and park , and such hard and level surface includes a surfaced walk situated parallel to the Residential Driveway in a manner capable of being parked or driven upon by part or the whole of a motor vehicle .

The width of the Residential Driveway is measured parallel to the front of an attached garage or in the case of a lot where there is no garage or there is a detached garage, the driveway width is measured perpendicular to the direction in which motor vehicles drive and park on the driveway.” [ 26 ] In addition, “residential landscaping” is defined in

section 5.0 of Brampton By-Law 270-2004 (Zoning) and specifically refers to surfaces that are not capable of being parked upon by part of the whole of a motor vehicle.

However, surfaces comprised rock or stones that permit the infiltration of water into the ground also fall within the definition of landscaping for a residential property , as long as it is not capable of being parked upon by part of the whole of a motor vehicle [ emphasis is mine below ]: “ LANDSCAPING, RESIDENTIAL shall be either, or any combination of both, of the following surfaces on detached, semi-detached and townhouse dwelling lots: 1) the sift surface (level or otherwise) capable of supporting the growth of vegetation (such as grass, trees, shrubs, flowers or other plants), or 2) the rough or irregular surface that permits the infiltration of water into the ground (such as rocks and stones) that is not capable of being parked upon by part of the whole of a motor vehicle .

Residential landscaping may include non- permeable portions of noise and retaining walls or non-permeable patios and walks not situated parallel to the Residential driveway in a manner capable of being parked or driven upon by part o[r] the whole of a motor vehicle. Residential landscaping may also include non-permeable stairs or stepped surfaces not capable of being parked or driven upon by part or the whole of a motor vehicle. [ 27 ] Moreover, the “rear yard” of a property is defined in

section 5.0 of Brampton By-Law 270-2004 (Zoning) to mean the full width of the lot between the rear lot line and the nearest main wall of any building or structure on the lot [ emphasis is mine below ]: “ YARD, REAR shall mean, in the case of an interior lot, a yard extending across the full width of the lot between the rear lot line and the nearest main wall of any building or structure on the lot, or in the case of a corner lot, a yard extending from a side lot line to an exterior side yard, and between the rear lot line and the nearest main wall of any building or structure on the lot .

[ 28 ] In addition, s. 2.3 of Brampton By-Law 270-2004 (Zoning) states that no lands shall be used in whole or in part except in conformity with the provisions of By-Law 270-2004: 2.3 Conformity with By-law No lands shall be used, and no building or structure shall be erected, located, used or altered, nor shall the use of any building, structure or lot be changed, in whole or part, except in conformity with the provisions of this by-law. [ 29 ] Furthermore, s. 10.9.1(B)(5) of Brampton By-Law 270-2004 (Zoning) states that driving and parking of motor vehicles on the required Residential Landscaping areas shall not be permitted [ emphasis is mine below ]: 10.9.1 Parking spaces are required in Residential Zones in accordance with the following provisions … B.

Notwithstanding the minimum landscaped open space requirement in the applicable zone, where parking spaces are required or provided on single detached dwelling, semi-detached dwelling and street townshouse dwelling lots, except lots within RE1, RE2, REH, RHm1, RHm2, RH and A zones. … 5) D riving and parking of motor vehicles on the required Residential Landscaping areas shall not be permitted . [ 30 ] And, more importantly, s. 2.2 of Brampton By-Law 270-2004 (Zoning) contains the general penalty provision for that Zoning Bylaw and provides that every person who contravenes any provision of that Bylaw is guilty of an offence and on conviction is liable to a fine that is provided for under the Planning Act , R.S.O. 1990, c.

P-13: 2.2 Violation and Penalty Every person who contravenes any provision of this by-law is guilty of an offence and on conviction is liable to a fine as provided for in the Planning Act . [ 31 ] Furthermore, municipalities such as the City of Brampton have been granted the authority by s. 34 of the Planning Act , R.S.O. 1990, c. P.13, to pass zoning bylaws that may restrict the use of land that is located within its borders [ emphasis is mine below ] : Zoning by-laws 34(1) Zoning by-laws may be passed by the councils of local municipalities: Restricting use of land

1. For prohibiting the use of land, for or except for such purposes as may be set out in the by-law within the municipality or within any defined area or areas or abutting on any defined highway or part of a highway. Restricting erecting, locating or using of buildings 2. For prohibiting the erecting, locating or using of buildings or structures for or except for such purposes as may be set out in the by- law within the municipality or within any defined area or areas or upon land abutting on any defined highway or part of a highway. … Construction of buildings or structures 4.

For regulating the type of construction and the height, bulk, location, size, floor area, spacing, character and use of buildings or structures to be erected or located within the municipality or within any defined area or areas or upon land abutting on any defined highway or part of a highway, and the minimum frontage and depth of the parcel of land and the proportion of the area thereof that any building or structure may occupy. … Excepted lands and buildings

(9) No by-law passed under this

section applies, (

a) to prevent the use of any land, building or structure for any purpose prohibited by the by-law if such land, building or structure was lawfully used for such purpose on the day of the passing of the by-law, so long as it continues to be used for that purpose; or (

b) to prevent the erection or use for a purpose prohibited by the by-law of any building or structure for which a permit has been issued under subsection 8 (1) of the Building Code Act, 1992, prior to the day of the passing of the by-law, so long as the building or structure when erected is used and continues to be used for the purpose for which it was erected and provided the permit has not been revoked under subsection 8 (10) of that Act. R.S.O. 1990, c.

P.13, s. 34 (9) ; 2009, c. 33 , Sched. 21, s. 10 (1). [ 32 ] In addition, a person who contravenes a bylaw that has been passed pursuant to s. 34 of the Planning Act , R.S.O. 1990, c. P.13, such as Bylaw 270-2004 (Zoning), is subject to t he penalties provided for under s. 67(1) of the Planning Act : Penalty 67

(1) Every person who contravenes

section 41,

section 46, subsection 49 (4) or

section 52 or who contravenes a by-law passed under

section 34 or 38 or an order made under

section 47 and, if the person is a corporation, every director or officer of the corporation who knowingly concurs in the contravention, is guilty of an offence and on conviction is liable, (

a) on a first conviction to a fine of not more than $25,000; and (

b) on a subsequent conviction to a fine of not more than $10,000 for each day or part thereof upon which the contravention has continued after the day on which the person was first convicted.

Corporation

(2) Where a corporation is convicted under subsection (1), the maximum penalty that may be imposed is, (

a) on a first conviction a fine of not more than $50,000; and (

b) on a subsequent conviction a fine of not more than $25,000 for each day or part thereof upon which the contravention has continued after the day on which the corporation was first convicted, and not as provided in subsection (1). Order of prohibition

(3) Where a conviction is entered under subsection (1), in addition to any other remedy or any penalty provided by law, the court in which the conviction has been entered, and any court of competent jurisdiction thereafter, may make an order prohibiting the continuation or repetition of the offence by the person convicted. [ 33 ] In sum, if the defendants are individually found to have contravened any provision of Brampton’s Bylaw 270-2004 (the Zoning Bylaw), then they are adjudged to have committed an offence under s. 2.2 of that Bylaw, and upon conviction are subject to the penalties provided for under s. 67(1) of the Planning Act , c.

P-13, which provides a maximum fine of $25,000 on a first conviction. 5. ISSUES [ 34 ] The following issues were brought up by the prosecution and the defendants or have arisen in the motion for non-suit: (

a) Is the rear yard paved for the purposes of s. 10.9.1(D)? (

b) Since the word “paved” is not defined in the Bylaw 270-2004, what does the word “paved” mean for the purposes of s. 10.9.1(D)? (

c) Is there a driveway, as defined under Bylaw 270-2004, in the rear yard of the defendants’ property? (

d) Does a paved driveway include one that is covered with gravel? (

e) Is there a driveway in the rear yard that does not lead to a garage? (

f) Is there any evidence that there is no garage in the rear yard of the defendants’ property? (

g) Did the City of Brampton charged the defendants under the wrong half or part of s. 10.9.1(D)? (

h) How many of the restrictions or conditions in s. 10.9.1(

D) could be contravened so as to form an offence under s. 2.2 of Bylaw 270- 2004?

(

i) If the City of Brampton has charged the defendants under the wrong half or part of s. 10.9.1(

D) could the information be amended without prejudice to the defendants or without injustice occurring? 6. ANALYSIS [ 35 ] Zoning bylaws are enacted by municipal governments to control the use of land in their municipalities .

These bylaws may direct how land may be used, where buildings and other structures can be located, the types of buildings that are permitted and how they may be used, and what the lot sizes and dimensions, parking requirements, building heights and setbacks should be from the street. [ 36 ] The defendants have been individually charged for not complying with a provision of Brampton’s Zoning Bylaw, which by virtue of s. 2.2 of Brampton By-Law 270-2004 (Zoning) is an offence.

The prosecution contends that there is a driveway in the rear yard of their property that does not lead to a garage, which is a purpose or use not permitted by s. 10.9.1(

D) of that Bylaw. [ 37 ] In their motion for non-suit, the defendants contend that their property does not fall within the purview of s. 10.9.1(

D) because the restriction against a rear yard being “paved” for the purpose of parking motor vehicles only refers to a rear yard that is covered with pavement, asphalt, or concrete and not to a rear yard that is only covered with gravel or small stones. [ 38 ] However, the prosecution disagrees with that assertion and submits that when interpreting the meaning of a word in the zoning bylaw, the purpose underlying that particular bylaw should be taken into account, and as such, a “paved” rear yard should include one covered with gravel or small stones, if it is being used for parking motor vehicles. [ 39 ] Ergo, if it is determined that the rear yard of the defendants’ property, which has been observed covered or laid over with gravel that has been packed down and where motor vehicles have been seen parked, is a “paved” rear yard for the purposes of s. 10.9.1(D), then the defendants’ motion for non-suit would fail.

However, before resolving that ultimate question, the other elements of s. 10.9.1(

D) also need to be considered in deciding whether the prosecution has made out a prime facie case in regards to the motion for non-suit. (

A) IS THE DEFENDANTS’ PROPERTY LESS THAN 0.2 HECTARES? [ 40 ] To start, the defendants would be adjudged to have committed an offence under s. 2.2 of Bylaw 270-2004 (Zoning), if they fail to comply with any provision or condition set out in s. 10.9.1(

D) of that Bylaw, which states that: D. For a lot less than 0.2 hectares, the rear yard for the purpose of parking motor vehicles shall not be paved other than a driveway leading to a garage permitted by this By-law and provided such a driveway in the rear is not wider than 3 meters or the width of the garage whichever is greater. [ 41 ] The restriction or condition against the rear yard of a lot in Brampton being paved, for the purpose of parking motor vehicles, only applies when the lot is less than 0.2 hectares.

The 2008 Assessment Roll document contained in Exhibit 5 indicates that the area of the lot at 25 Church Street East is 10,585.74 square feet. Jim McColl, the zoning plans examiner, who regularly uses the formula for converting square feet to hectares in his work, calculated that 0.2 hectares is equal to 21,520 square feet. As such, the defendants’ lot size of 10,585.74 square feet is less than 0.2 hectares or 21,520 square feet, making the rear yard of the defendants’ property subject to the restriction set out in s. 10.9.1(D), that it cannot be paved if it is for the purposes of parking motor vehicles. (

B) IS THE REAR YARD OF THE DEFENDANTS’ PROPERTY USED FOR THE PURPOSE OF PARKING MOTOR VEHICLES? [ 42 ] For the next element, s. 10.9.1(

D) restricts rear yards from being paved if it is for the purpose of parking motor vehicles. Hence, is there any evidence that shows the rear yard of the defendants’ property is being used for the purpose of parking motor

vehicles? [ 43 ] In that regard, I find that the prosecution has adduced evidence of a motor vehicle being parked in the rear yard of the defendants’ property on February 2, 2009. Steve Brown, the property standards officer, who attended at the defendants’ property, testified that he drove his motor vehicle on a hard surface to the rear yard of the property on February 2, 2009, and observed a large area in the rear of the property cleared or ploughed of snow and one vehicle parked in the rear yard and the rear yard covered with gravel or small stones.

Brown also took photographs of the rear yard on February 2, 2009, that had been cleared of snow and of the motor vehicle parked at the rear, which were entered as exhibits at the trial. In particular, Exhibit 1d does clearly show a large part of the rear yard cleared of snow and a motor vehicle parked in the rear yard, in addition to Brown’s vehicle. Furthermore, Brown returned to the defendants’ property on October 27, 2009, and took additional photographs of the rear yard, entered as Exhibit 3a, which also clearly shows five motor vehicles parked in the rear yard.

As such, there is evidence before me that the rear yard of the defendants’ property had been used for parking motor vehicles on February 2, 2009, the date of the alleged offence, and also subsequent to that date. (

C) WHAT DOES THE WORD “PAVED” IN S. 10.9.1(

D) MEAN? [ 44 ] Now, with respect to the principal issue in this case, the defendants’ property would not be in compliance with s. 10.9.1(

D) if the rear yard of that property were “paved” for the purpose of parking motor vehicles. In that regard, the prosecution contends that the rear yard was paved with gravel on February 2, 2009, so that motor vehicles can drive and park on that gravelled area. [ 45 ] However, the defendants contend that the restriction or condition in s. 10.9.1(

D) against the rear yard of lots being “paved”, if it is being used for parking motor vehicles, does not apply to a surface of gravel or small stones, but only applies to a hard, flat surface that is composed of pavement, asphalt, or concrete.

The defendants’ argument is based on the following logic: (1) the word “paved” is not defined in Bylaw 270-2004, so the meaning of “paved” must be determined by the court; (2) an area that is “paved” does not refer to an area covered with gravel or small stones; (3) the definition of a “residential driveway” set out in s. 5.0 of Bylaw 270-2004 (Zoning) refers to a “hard and level surface” “ consisting of, but not limited to, asphalt, pavement, concrete, patterned concrete, compacted gravel and dirt, interlocking brick or paving stone”, which specifically lists examples of the types of surfaces for driveways, and as such, differentiates between a driveway made from asphalt or concrete and one made of compacted gravel and dirt ”; and (4) the word “pave” is defined in Webster’s II: New Riverside Dictionary (New York: Berkley Books), to mean “covering a hard, smooth surface with concrete for travelling on”, but does not specifically mention covering a surface with gravel, as a material that can be used to cover or pave a surface.

Therefore, the defendants contend that a rear yard covered with gravel is not intended to be included in the restriction that a rear yard “shall not be paved” for the purpose of parking motor vehicles in s. 10.9.1(D), but that a paved surface is intended to only mean one covered with pavement, asphalt, or concrete. [ 46 ] On the other hand, the prosecution argues that when the purpose underlying s. 10.9.1(

D) is taken into account then a “paved” rear yard should include a gravel-covered area because motor vehicles would still be able to drive and park on gravel. [ 47 ] Furthermore, in support of their argument that a “paved” area does not include one consisting of gravel the defendants’ made reference to the dictionary, Webster’s II: New Riverside Dictionary (New York: Berkley Books), where the word “pave” is defined as covering an area with a hard, smooth surface of concrete to enable travelling: Pave (pā

v) v. paved, pav-ing.

To cover (e.g., a street) with a hard, smooth surface, as of concrete, for travel. [ 48 ] However, in contradicting the defendants’ argument and to counter the defendants’ reliance on a particular dictionary for establishing the meaning of the word “pave”, the prosecution offered up a different dictionary, namely, The Oxford Dictionary of Current English (Oxford University Press), which, at p. 654, provided a broader definition for the word “pave” that referred to covering an area with a durable surface that was not strictly made of concrete or asphalt: Pave v. (- ving ) cover (a street, floor, etc.) with a durable surface. ​ pave the way (usu. foll. by for ) make preparations. ​ paving n. [Latin pavio ram (v.)] [ 49 ] Essentially, if one were to search in enough dictionaries one can imagine that eventually one could find a definition for the

word “pave” that best suits or fits their argument of whether a paved driveway could be one comprised of gravel or one that is bydefinition made up of asphalt or concrete.

For example, in Barber, K., ed., The Canadian Oxford Dictionary (Don Mills, Ontario: OxfordUniversity Press, 1998), p. 1003, the word “pave” is defined to mean to cover a an area with asphalt or stone, or to cover with anything,even with flowers: Pave /perv/ v.tr. 1 a cover (a street, floor, etc.) with asphalt, stone, etc. b cover or strew (a floor etc.) with anything (paved with flowers).2 prepare (paved the way for her arrival). ​ paver n. paving n. pavior n. (also paviour). [Middle English from Old French paver, back-formation (as pavement)]. [50] Ergo, in order to resolve this battle of dictionaries, I am guided by Iacobucci J. writing for the Supreme Court of Canada inRizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at pp. 40-41, who reasoned that the modern principledapproach should be used by courts instead of the plain meaning approach, when they are required to interpret or construe the meaning ofa particular statutory provision, by stating that the words of

an Act are to be read in their entire context and in their grammatical andordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislators who enacted thestatutory provision [emphasis is mine below]: Although much has been written about the

interpretation of legislation (see, e.g. Ruth Sullivan, Statutory

Interpretation (1997); RuthSullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre-André Côté, TheInterpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates theapproach upon which I prefer to rely. He recognizes that statutory

interpretation cannot be founded on the wording of the legislationalone. At p. 87 he states: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [51] Furthermore, s. 64(1) of the Legislation Act, 2006, c. 21, Sched. F, states that a fair, large and liberal

interpretation of Ontariostatutes should be made to best ensure the attainment of the object of a statute [emphasis is mine below]: Rule of liberal

interpretation 64(1)

An Act shall be interpreted as being remedial and shall be given such fair, large and liberal

interpretation as best ensures theattainment of its objects. [52] Moreover, the Supreme Court of Canada in R. v. Jarvis, 2002 SCC 73 , [2002] 3 S.C.R. 757, [2002] S.C.J. No. 76(QL), at para. 77 of [2002] S.C.J. No. 76 (QL), reaffirmed that the proper approach in seeking the legislative intent of a statutoryprovision is by reading the words in context and according to their grammatical and ordinary sense, harmoniously with the scheme andthe object of the statute: The approach to statutory

interpretation can be easily stated: one is to seek the intent of Parliament by reading the words of the provisionin context and according to their grammatical and ordinary sense, harmoniously with the scheme and the object of the statute(Interpretation Act, R.S.C. 1985, c. I-21, s. 12; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42; Rizzo &Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27; R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; E.

A.Driedger, Construction of Statutes (2nd ed. 1983), at p. 87). [53] Similarly, the "ejusdem generis" rule for determining the grammatical meaning of a phrase or clause provides that ambiguousphrases or clauses derive their meanings from the specific context in which they appear. [54] Furthermore, in her textbook, Statutory

Interpretation (Toronto, Ontario: Irwin Law Inc., 1997), at pp. 54, 134, and 137,Professor Ruth Sullivan emphasized that interpreters of legislative text must identify and take into account the purpose of legislation andby analyzing the words to be interpreted in context and that modern legislation is also written in a form that lends itself to purposiveanalysis [emphasis is mine below]: The meaning of a legislative text is determined by analysing the words to be interpreted in context.

Words are analysed in theirimmediate context by focusing on the specific provision in which the words appear and attempting to understand the reasons why thelegislature has chosen this combination of words, this structure, this punctuation, and so on. Words are also analysed in larger contexts

by comparing the wording of the provision to be interpreted with the wording of provisions elsewhere in the same or other Acts and by considering the role of the provision in the scheme to which it belongs . … To achieve a sound

interpretation of a legislative text, interpreters must identify and take into account the purpose of legislation . This includes the purpose of the provision to be interpreted as well as larger units - parts, divisions, and the Act as a whole. Once identified, the purpose is relied on to help establish the meaning of the text . It is used as a standard against which proposed

interpretations are tested: an

interpretation that promotes the purpose is preferred over one that does not, while

interpretations that would tend to defeat the purpose are avoided . Purposive analysis has become a staple of modern

interpretation. It is used not only where the language of a text is found to be ambiguous but in every case and at every stage of

interpretation. This reliance is justified by the interaction between language and purpose that is present in all communication, including legislation. The listener or reader infers the purpose from what is being said and at the same time understands what is being said in light of the purpose. A strong emphasis on purpose is also justified by a number of legal considerations . First, a purposive approach has been mandated by the legislature. There is a provision in every Canadian

Interpretation Act directing interpreters to give to every enactment "such fair, large and liberal construction and

interpretation as best ensures the attainment of its objects." Second, much modern legislation is written in a form that lends itself to purposive analysis. Modern provisions tend to be drafted in general terms and many confer broad powers or discretion on officials. For courts to discern the proper scope of such provisions, they must know their purpose . A third factor is the Canadian Charter of Rights and Freedoms , which came into force in 1982.

In its earliest Charter decisions the Supreme Court of Canada emphasized the need for purposive analysis both to give definite meaning to the broad language and complex ideas found in the Charter and to test whether legislation found to violate its provisions might be justified under

section 1 . In working with the Charter, Canadian courts have become accustomed to the techniques of purposive analysis. … Most often the purpose of legislation is established simply by reading the words of the text. More precisely, the purpose is inferred by reading the text in the context of the interpreter's common sense as well as his or her individual knowledge, values, and beliefs. Interpreters rely on this contextual material, first, to surmise what effects are likely to result from the operation of the legislation and, second, to conclude which possible effects are desirable.

The desirable effects are presumed to be the intended goals of the legislation. [ 55 ] Thus, in considering the zoning bylaw in context and along with the object of the bylaw, it is clear that the concern underlying s. 10.9.1(

D) is the use of rear yards for the purpose of parking motor vehicles. Providing a hard, level, and durable surface in the rear yard of a lot would foster such use. Moreover, an area covered with gravel could provide a hard, level, and durable surface for motor vehicles to drive on and to park on, especially during a rain storm.

And, there is evidence that the gravel-covered area in the rear yard of the defendants’ property could be driven on by motor vehicles and that motor vehicles were in fact parked on the gravel area of the rear yard. [ 56 ] In addition, the area in question was ploughed or cleared of snow, which further supports the notion that the rear yard was being used purposely to park motor vehicles.

Therefore, any ambiguity in what the word “paved” means is resolved when taken in context and against the underlying purpose of s. 10.9.1 to restrict the parking of motor vehicles in rear yards, which could be facilitated when a rear yard is paved with any material that permits motor vehicles to be driven and parked on, and as such, includes using packed down gravel or small stones for that purpose. Furthermore, a residential driveway is defined in s. 5.0 of Bylaw 270-2004 and means a hard and level surface that includes one comprised of compacted gravel and dirt, where motor vehicles could drive and park on.

In short, since a gravel- type driveway is specifically included in the definition of a residential driveway for the purpose of Bylaw 270-2004, then gravel-covered surfaces are already viewed categorically as a hard and level type of surface in which motor vehicles could be driven and parked on. [ 57 ] Moreover, although residential landscaping is defined in s. 5.0 to also include rocks and stones, which allows water to infiltrate into the ground, it is only considered to be landscaping if motor vehicles are not capable of being parked on those rocks or stones.

This further illustrates that it is not only the name or the type of the surface that determines whether a particular area is paved or not paved, but the determination also includes the function or the intended purpose to which the covering on the area in question is to be used for.

[ 58 ] Thus, for the purposes of s. 10.9.1(

D) the defendants’ gravel-covered rear yard would be a “paved” rear yard. (

D) WHAT RESTRICTIONS OR CONDITIONS UNDER S. 10.9.1(

D) WHEN NOT COMPLIED WITH COULD BE THE BASIS OF AN OFFENCE UNDER S. 2.2 OF BYLAW 270-2004? [ 59 ] Although it has been resolved that the defendants’ rear yard, which is covered with packed down gravel and dirt, is considered to be “paved” for the purposes of s. 10.9.1(D), the defendants also contend that they were charged under the wrong half of s. 10.9.1(D), which was for having a driveway not leading to a garage. Rather, they suggest that they should have been charged in relation to the first half of that provision, which would be for the paving of the rear yard for the purpose of parking motor vehicles. [ 60 ] In that regard, one part of s. 10.9.1(

D) does speak about restricting rear yards being paved if it is used for the purpose of parking motor vehicles while the another part relates to a driveway in the rear yard that does not lead to a garage. Thus, have the defendants been charged under the wrong part of s. 10.9.1(

D) or are there several restrictions set out in s. 10.9.1(

D) that if contravened would make it an offence under s. 2.2 of Bylaw 270-2004? [ 61 ] Bear in mind that the defendants were charged with committing an offence under s. 2.2 of Bylaw 270-2004 (Zoning), which provides that anyone who contravenes any provision of Bylaw 270-2004 commits an offence under s. 2.2. Hence, if any provision in s. 10.9.1(

D) is contravened by the defendants then they would be committing an offence under s. 2.2. In examining s. 10.9.1(D), there are in fact three provisions in that

section that have to be complied with. They are specifically:

(1) If the rear yard of a lot is being used for the purpose of parking motor vehicles then the rear yard cannot be paved or covered with such materials as asphalt, pavement, concrete, patterned concrete, compacted gravel and dirt, interlocking brick , paving stone, or other materials, excluding vegetation or grass, that would allow motor vehicles to be driven on it or parked on it. However, if the paved area in the rear yard were only a driveway that leads to a garage then this driveway would be exempted from this restriction.

Therefore, if the rear yard is paved with materials so that motor vehicles can be parked or driven on and the paved area is not exempted as a driveway that leads to a garage then the rear yard would not be in compliance with s. 10.9.1

(2) However, if the paved area is a driveway paved or covered with such materials as materials as asphalt, pavement, concrete, patterned concrete, compacted gravel and dirt, interlocking brick , paving stone, or other materials, excluding vegetation or grass, that would allow motor vehicles to be driven on it or parked on it and does not lead to a garage , then this paved driveway not leading to a garage would not be in compliance or permitted under s. 10.9.1.

Hence, materials (excluding vegetation or grass) used to cover an area in the rear yard that would allow that area to function physically as driveway so that motor vehicles could drive on and park on it would meet both the definition of being paved and the definition of a residential driveway, while a surface that does not allow motor vehicles to drive on and park on it would likely not fall within the definition of being paved or the definition of a residential driveway.

(3) In addition, if the paved area is a driveway paved or covered with such materials as asphalt, pavement, concrete, patterned concrete, compacted gravel and dirt, interlocking brick , paving stone, or other materials, excluding vegetation or grass, that would allow motor vehicles to be driven on it or parked on it and leads to a garage it would in compliance unless the driveway is wider than the greater of either three meters or the width of the garage.

If the driveway does not comply with the permissible width requirement then the driveway would also be in non-compliance with s. 10.9.1. [ 62 ] As is evident, the three provisions or conditions in s. 10.9.1 that are required to be complied with do have some overlap, but keep in mind that non-compliance with any of these three specific conditions contained in s. 10.9.1(

D) would still be an offence under s. 2.2. To appreciate the overlap between these conditions, take for example the situation where the paved part of the rear yard covers the entire rear yard and is used for driving and parking motor vehicles and there is no existing garage, then the paved area could be considered either as a driveway or as a paved rear yard, in which both situations would be in non-compliance with s. 10.9.1.

Alternatively, if the driveway led to a garage but the paved area covered the entire rear yard and was wider than three meters or the width of the garage, then it could still be referred to as either a driveway or a paved rear yard and the non-compliance could be either from the extra wide driveway or the paved rear yard. [ 63 ] Consequently, if any one of those three provisions in s. 10.9.1 is not complied with then any one of them would be separate contraventions and an offence under s. 2.2.

Therefore, based on the evidence adduced in the case at bar the City of Brampton could have chosen to lay a charge in relation to a contravention of either the first or second condition of the three conditions contained in s. 10.9.1., namely having a paved rear yard for the purpose of parking motor vehicles or having a driveway which does not lead to a garage.

Accordingly, there has been no error or defect in the charge laid against either of the defendants. (

E) IS THERE PROOF THAT THERE IS NO GARAGE IN THE REAR YARD? [64] For the issue of whether evidence has been adduced that there is no garage, I find there is evidence in the record that there is nogarage in the rear yard of the defendants’ property. That evidence is contained in the photographs entered as exhibits, especially Exhibits1d and 3a, which clearly reveals there is no garage in the rear yard. [65] Moreover, s. 47(3) of the Provincial Offences Act, R.S.O. 1990, c. P.33, requires the person claiming an exemption thatoperates in their favour to prove the exemption on a balance of probabilities.

Burden of proving exception, etc. 47(3) The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of thedefendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception,exemption or qualification does not operate in favour of the defendant, whether or not it is set out in the information. [66] Ergo, since a driveway leading to a garage is an exemption to the first condition that rear yards cannot be paved, then it falls onthe defendants to prove the existence of a garage to which the driveway leads and that the driveway is also not wider than the greater ofthree meters or the width of the garage. [67] However, the burden to prove the existence or non-existence of a garage in the rear yard depends on whether the charge relatesto the first or second condition in s. 10.9.1(D).

If the contravention related to the first condition prohibiting a paved rear yard for thepurpose of parking motor vehicles then the onus would be on the defendants to prove the existence of a garage to which the paveddriveway leads to, as an exemption to the restriction under s. 10.9.1. However, if the contravention related to the second condition of apaved driveway that does not lead to a garage, then, as in this case, the prosecution has to prove the non-existence of a garage.

In thiscase, the prosecution has met this burden by entering photographs of the rear yard, specifically Exhibits 1d and 3a, which clearly showsthere is no garage in the rear yard to which a driveway leads to. (

F) IS THERE EVIDENCE IN THE RECORD UPON WHICH A PROPERLY INSTRUCTED JURY OR TRIER OF FACTCAN RATIONALLY CONCLUDE THAT THE DEFENDANTS ARE GUILTY BEYOND A REASONABLE DOUBT? [68] In deciding whether this motion for non-suit should be granted or dismissed, the test for determining if the prosecution has metits evidential burden in making a prime facie case is now found in the Supreme Court of Canada’s decision in R. v.

Fontaine (2004),2004 SCC 27 , 18 C.R. (6th) 203, at para. 53, in which the court concluded that the case against the accused cannot go to thejury or to be decided by the trier of fact, “unless there is evidence in the record upon which a properly instructed jury could rationallyconclude that the accused is guilty beyond a reasonable doubt”: the case against the accused cannot go to the jury unless there is evidence in the record upon which a properly instructed jury couldrationally conclude that the accused is guilty beyond a reasonable doubt. [69] In addition, in their textbook entitled, “The Law of Evidence, 5ed.” (Toronto, Ontario: Irwin Law Inc., 2008), the authors, D.M.Paciocco and L.

Stuesser, at p. 538, have recognized the evolution of the test used in deciding whether the prosecution has made out aprime facie case and concluded that the Supreme Court of Canada has improved the classic test established in the United States v.Sheppard case by removing the ambiguity from that classic test on whether the Sheppard test required some evaluation of the sufficiencyof proof: In R. v.

Fontaine the Supreme Court of Canada said that there is no prima facie case "unless there is evidence in the record upon whicha properly instructed jury [can] rationally conclude that the accused is guilty beyond a reasonable doubt." This standard represents both an evolution of, and improvement on, the classic test from the United States v. Sheppard. The ambiguously worded Sheppard testhad been understood by some as leaving no room for evaluation of the sufficiency of proof; there would be a prima facie case if there

was "any" evidence, no matter how weak, on each of the things the Crown had to prove in order to gain a conviction. Others accepted that the Sheppard test required some evaluation of sufficiency but that in undertaking that evaluation the judge should avoid considering the criminal standard of proof. Fontaine and another Supreme Court of Canada decision, R. v. Arcuri have now pushed much of the uncertainty aside. [ 70 ] As a result, since s. 10.9.1(

D) of Bylaw 270-2004 restricts rear yards being paved, if for the purpose of parking motor vehicles, and that covering a surface with gravel or a surface comprised of compacted gravel and dirt is included in the types of paved rear yards for the purpose of that provision, and since there is evidence that shows there is no garage in the rear yard to which the paved driveway leads to, then the prosecution has met its evidential burden of adducing evidence upon which a properly instructed jury or trier of fact could rationally conclude that the defendants are guilty beyond a reasonable doubt of contravening s. 10.9.1(D), of having a driveway in the rear yard which does not lead to a garage. 7.

DISPOSITION [ 71 ] Accordingly, since the prosecution has made out a prime facie case by adducing evidence upon which a properly instructed jury or trier of fact could rationally conclude that the defendants are guilty beyond a reasonable doubt, then the defendants’ motion for non- suit is dismissed. Dated at the City of Brampton on July 6, 2011. ____________________________ QUON J.P. Ontario Court of Justice