Hamilton (City) v. McNiven, 2018 ONCJ 973

CITATION: Hamilton (City) v. McNiven , 2018 ONCJ 973 DATE: June 29, 2018 Information No. 14 2997 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. JAMES MCNIVEN ********** REASONS FOR JUDGMENT HIS WORSHIP JUSTICE OF THE PEACE D. D’IGNAZIO At Ontario Court of Justice, Hamilton, Ontario On Friday, June 29, 2018 ********** APPEARANCES : L. Clayton Municipal Prosecutor G. Murphy Municipal Prosecutor J. McNiven Defendant Present in Person FRIDAY, JUNE 29 th , 2018 : … Upon Commencement of Proceedings: MS. CLAYTON: Good morning, Your Worship. HIS WORSHIP: Good morning. MR. MURPHY : Good morning, Your Worship. HIS WORSHIP: Good morning.

MS. CLAYTON: And calling the James McNiven matter,… HIS WORSHIP: Thank you. MS. CLAYTON: …here for judgment this morning. Mr. McNiven is here, sir. HIS WORSHIP: Thank you. Good morning, Mr. McNiven. I’m going to stand down for a minute because I have to retrieve something. Thank you. COURT REPORTER: Order. R E C E S S U P O N R E S U M I N G: COURT REPORTER: Court is resumed. You may be seated. HIS WORSHIP: All right, everyone can remain seated. These are the reasons for the decision in the matter of Mr. McNiven.

Introduction James McNiven (the defendant) stands charged on fifty-six counts, that on or about July 20, 2014 and August 10, 2014, at the former Town of Ancaster, now City of Hamilton, did commit the offence of unlawfully removing, injuring or destroying a tree as prescribed in

Section 3.1 of By-Law No. 1000-18, The Corporation of the Town of Ancaster, as amended, without a permit, and did thereby commit an offence contrary to

Section 10.1 of the Town of Ancaster By-Law 2000-118 as amended. The case against the defendant involved an extensive documentary record. There had been several pre-hearing case management appearances to assist in arriving at a mutually agreeable resolution, but by the time of the opening of the hearing, no agreement had been reached. The hearing itself was hard fought. The relations between the prosecutors and the appellant were for the most part respectful and courteous.

There were many instances where the defendant, as an unrepresented litigant, required assistance and direction of the court and such was offered, at the discretion of the court and within the constraints of the law. Both the prosecution and the defence should be commended for their well-researched and presented arguments. The first sitting of this court occurred on August 28, 2017 and continued on August 30 and then August 31, 2017. At the close of the prosecution’s case the defendant indicated that he wished the court to consider a directed verdict.

Specifically, according to the defendant, it was his belief that the prosecution had not established that all the essential elements of the charges were met. On September 5, 2017, the defendant brought a motion of non-suit. This motion was a request of the trial justice to find the Prosecution had not established a prima facie case against the Defendant. A prima facie case exists where there is some evidence on each element of the offence, which, if believed by a trier of fact, could support a conviction.

The justice does not weigh the evidence or make findings of credibility, but simply determines if there is some evidence; U.S.A. v. Sheppard, [1976] S.C.C. and R. v. Charemski, [1998]. The court was satisfied that the prosecution did establish to the satisfaction of the court that a prima facie case existed. The motion was denied. Fulsome reasons were provided under separate cover. This matter first appeared in court on October 2, 2014. It is trite to say that the issue of delay is engaged according to R. v. Jordan (SCC) as it has taken nearly four years to consider the matter.

At the agreed resumption trial date of April 23 rd , 2018 the Defendant brought an 11(

b) Charter challenge motion before the court requesting a stay of proceedings due to delay. The application was considered by the court and denied. It was the finding of the court that the matter proceeded well under the threshold 18 months established by R. v. Jordan for Provincial Offences Act matters. Fulsome reasons were also provided under separate cover. Background The property in question is located 558 Golf Links Road in the City of Hamilton and specifically the old Town of Ancaster (hereinafter

the Golf Links property). It is located at the southeast corner of McNiven Road and Golf Links Road bordering Highway 403. It is an open undeveloped area. The defendant’s father, Glendon Thomson McNiven, appears to have been the original owner of the property. The defendant testified that he spent much time on this property as a young person and still maintains a close physical and emotional attachment to the property. The legal owner of the property throughout the entire period of this matter is thought to be Glendon Thomson McNiven in care of Royal Trust.

It appears that for some time the property was held by Royal Trust in a trust for beneficiaries not disclosed to this court. The nebulous nature of current ownership, although intriguing, is not determinative of the matter at issue. The court invited both the prosecution and defendant to detail or otherwise comment on the identity of the current owner of the Golf Links property but both declined to do so. The allegations are that cuttings took place of 56 Heritage trees on public or private lands without a permit being first issued for the cuttings.

These charges arose out of complaints from area neighbours whose homes abutted the Golf Links property. City officials responded to the complaints, an investigation ensued with the result of 56 charges being laid against the defendant James McNiven. Elements of the offence to be proven : The by-law which governs the matter at issue; Location and time of offence; Were tree(

s) unlawfully removed, injured or destroyed without a permit; Were the trees Heritage trees; and The identity of the person responsible. A. The Issue of By-Law Application. The charges against the defendant were laid under The Corporation of the Town of Ancaster By-Law No. 2000-118 (hereinafter the Ancaster By-law). The prosecution argues that this by-law was in full force and effect at the time it was invoked in this matter. The Ancaster by-law was enacted and passed on the 6 th day of November, 2000. The prosecution also argues that regardless of the passing of any subsequent or previous By-Law,

section 3.3 of the Ancaster By-Law clearly “saves” its applicability. This

section states that; “In the event of any conflict between this By-Law and a By-Law passed under the Forestry Act, R.S.O. 1990 c. F. 26 or any other statute or by-law, the provision that is the most restrictive of the injury or destruction of trees prevails.” According to the prosecution the Ancaster By-Law is the most restrictive as it contemplates a greater protection for Heritage trees than any other By-Law that may have been in force at that time.

The defendant argues that the correct By-Law City of Hamilton officials should have used to prosecute him, if indeed such prosecution was warranted, is the Regional Municipality of Hamilton-Wentworth By-Law No. 054 respecting woodland conservation (hereinafter the Woodland By-Law). This By-Law was enacted by the Regional Municipality of Hamilton-Wentworth on July 4, 2000.

The defendant also argues that the Ancaster By-Law is not “saved” as the Woodland By-law is more restrictive on the basis that it does not deal with storm damaged trees and that the fines under the By-Law are higher than those enumerated in the Woodland By-Law. In the alternative, the Defendant argues that the By-Law is non-applicable because of

section 3.2(xiv) of the Ancaster By-Law. I do not accept the defendant’s contentions for the following reasons.

With respect to the issue of by-law application on the basis of appropriateness of use, the defendant called upon Mr. Jack Winkler to give testimony. The respondent sought to have the court qualify Mr. Winkler as an expert for the purposes of this hearing. A voir dire was held to determine whether Mr. Winkler would be qualified as an expert. The court carefully considered the evidence and applicable case law, including the direction of the SCC in R. v. Mohan, 1994, and the Ontario Court of Appeal in R. v. K(A) 1999. The court determined that Mr. Winkler would not be qualified as an expert.

The defendant failed to satisfy the court as to what precisely the defendant would want Mr. Winkler to give expert opinion on. The court was satisfied that Mr. Winkler’s evidence would tend to usurp the duty of the trier of fact, that the prejudicial effect of the evidence would outweigh the probative value, and the influence of the evidence would outweigh the evidence’s credibility; R. v Terceira (1998) (ONCA). Fulsome reasons for the decision were provided under separate cover. Mr. Winkler was welcome to give testimony as a defence witness and as a person knowledgeable about matters at issue. Mr.

Winkler testified that in his opinion the “most appropriate by-law” to have been used in this case was the Woodland By-Law. According to Mr. Winkler the Golf Links Property was at the time the charges were lad against the defendant, and still remains, a woodland as contemplated by the Woodland By-Law. I have no reason to doubt Mr. Winkler’s opinion that he prefers the Woodland By-Law over the Ancaster By-Law as applicable to this case. But, Mr. Winkler’s opinion is not determinative of the matter at issue. Mr.

Winkler reviewed with the court aerial maps of the area and provided his estimates of trees for the area.

Section 2.31 of the Ancaster By-Law defines the term “Woodland.” No satisfactory evidence was provided to this court that would suggest the Golf Links property met the definition of woodland or was otherwise officially designated as such by City of Hamilton officials at the appropriate time at issue. I hasten to add that Mr. Winkler also testified that regardless of his views or opinions, when dealing with municipal By-Laws of this nature it is his practice to defer to the expertise of municipal By-Law officials in the

interpretation and application of By-Laws. The prosecution argues that it is not contending that the Golf Links Property is or is not a woodland. According to the prosecution the City of Hamilton knowingly and purposefully proceeded with the charges against the defendant knowing very well that it was not alleging the Golf Links Property to be a woodland. The prosecution reminds the court that it is simply proceeding in the case against the defendant on the basis that Heritage trees were cut or destroyed without a permit.

As such, according to the prosecution, the issue of whether the property is a woodland or not is moot and otherwise not determinative of the matter at issue in the circumstances. I agree with the prosecution. Second, with respect to the non-applicability of the Ancaster By-Law on the basis of restrictiveness as compared to the Woodland By- Law, the defendant’s evidence and submissions are premised largely on the central contention that he was acting in an altruistic manner in clearing the land of dangerous trees after a severe winter ice storm which caused extensive tree damage on the Golf Links Property.

I wish to address this matter in some detail at this point. I do not accept the evidence and submissions of the defendant in this respect. The defendant would want me to believe that the ice storm of December 2013 wrought such biblical devastation on the Golf Links property that the public was put in danger as a result. Although I accept there was an ice storm that caused trees, amongst other things, to have been negatively affected, there is no credible evidence that it was of the catastrophic magnitude described by the defendant. The defendant’s assessment was his assessment. He is not a qualified tree expert.

There is no satisfactory evidence that the defendant sought the advice of any tree expert and/or City of Hamilton officials to certify the removal or destruction of trees because, as the defendant argues, significant portions of the trees on the property were dead, diseased or hazardous as contemplated by

section 5.1.1.1(iv) of the Ancaster By-Law. Furthermore, I wish to emphasize at this point that the ice storm occurred in December 2013 and the charges at issue involving standing Heritage trees occurred some six months later in 2014. The defendant also argues that the fines under the Ancaster By-Law are higher than those enumerated in the Woodland By-Law and thus makes the Woodland By-Law more restrictive. Perhaps, but the relevance of this to the charges at issue was not satisfactorily explained by the defendant.

Fines are an issue of penalty and only come into play once there is a finding of guilt to the charges before the court. The restrictiveness of the fines in the Woodland By-Law as compared to the fines set out in the Ancaster By-Law is not in any way determinative of the charges before the court. I am satisfied that the most restrictive By-Law is in fact the Ancaster By-Law in the circumstances of this case.

Third, the defendant argues that the Ancaster By-Law is non-applicable because of

section 3.2(xiv) which states; “The removal of damaged or destroyed trees in the interests of public safety, health and general welfare following any man-made or natural disasters, storms high winds, floods, fires, snowfall, freezes.” I disagree with the defendant. To read

section 3.2(xiv) as the defendant urges would in my view render the Ancaster By-Law an absurdity. It would mean that everyone and anyone could at any time exempt themselves from this By-Law by simply and arbitrarily declaring that they were acting in the interests of public safety, health and general welfare of the public on their own initiative. In my view one has to look at the overall intent of the Ancaster By-Law when interpreting and applying it. The intent is clear to me. There is a logical progression when determining if and when the Ancaster By-Law is not applicable.

I am satisfied that the Ancaster By-Law contemplates the requirement of a permit before any tree is removed or destroyed as prescribed by

section 3.1 of the Ancaster By-Law. If the tree is considered dead, diseased or hazardous it must be certified as such by the officer, a qualified tree expert or the director of operations. Only after such certification is a permit not required and as such the By-Law then no longer applies. It should also be stated at this point that not only did the defendant not contact Hamilton City officials to request an assessment of the alleged damage to the trees and/or seek assistance or guidance on how to proceed in the aftermath of the ice storm, it appears he asked no one else. He could have called Mr.

Winkler or any other arborist or tree removal service professional for assistance and guidance. Apparently he did not chose to do so, choosing instead to proceed on his own. Mr. Canfor testified that none of the trees at issue appeared to him to be dead or diseased. None could be regarded as hazardous as contemplated by the Ancaster By-Law. He went on to say that there was no indication of an emergency existing requiring the cutting down of these trees. According to Mr. Canfor, the ice storm damage to trees much referred to by the defendant was not an issue requiring the cutting down of these specific trees.

I do not see, on the record of this case, any basis for concluding that City of Hamilton officials erred or otherwise used the wrong By- Law in pursuing the matter at issue. It is true that both By-Laws were operative at the time the charges were laid. It is trite to say that it is the discretion of City of Hamilton officials to decide which By-Law they intend to use when pursuing a prosecution. I see nothing untoward or nefarious on the part of Hamilton City officials in choosing to proceed under the Ancaster By-Law as opposed to the Woodland By-Law.

There is no reason for this court to intervene into what is a discretion of the City of Hamilton to prefer one By-Law over another in this case. I am satisfied that The Corporation of the Town of Ancaster By-Law No. 2000-118 was of full force and effect at the time it was invoked and is fully applicable to the matter at issue. B. The Issue of Location and Time of Offence There is no issue with location. This matter involves 558 Golf Links Road, Hamilton. The prosecution contends that the unlawful tree cutting at this address occurred between July 20, 2014 and August 10, 2014.

The prosecution relies on the evidence of several long time neighbours abutting the property to buttress its contention. Sonya Newhouse and her daughter Meghan both testified that they heard and saw live trees being cut during this period. Sonya Newhouse took a video of persons cutting trees on the property on August 9, 2014 as can be seen in Exhibit 5. Johanna Verbundt testified that she heard chainsaws and falling trees on the Golf Links property on weekends during this period. She testified she could hear the trees falling and felt the vibration of the trees as they hit the ground during this period. Ms.

Rose Lynn Burwell stated that she heard large trees falling over during the period in question. She further testified that the cutting went on for days. Mr. Warner Burwell testified that the he was aware of tree cutting on the Golf Links property prior to August 9, 2017. Christopher Newhouse testified on August 9, 2017 he took the

pictures seen in Exhibit 9 of persons cutting trees on the Golf Links property. Mr. Canfor testified that all trees at issue in this hearing were “fresh cut” and “very close … within weeks” from the time he measured them. The defendant disputes the prosecution’s contention that the trees at issue were cut on the Golf Links property during the period in question. The defendant relies on the testimony of Mr. Winkler who reviewed each and every tree in Exhibit 21 with the court. According to Mr.

Winkler’s review of the pictures many of the trees at issue showed signs of having been cut long before the pictures were taken. He commented on such things as the type, colour, and state of the trees as to their health. He also opined on the resting positions of the trees, how and when they were cut, and the foliage surrounding the felled trees as an indication when they were probably cut. Mr. Winkler, unlike Mr. Canfor, was not present at the time and place of the alleged contraventions. Mr. Winkler first attended the property some three years later.

His assessments and opinions respecting cutting times come from looking at photographs of the felled trees and what he believed was the approximate cutting time of the trees. I prefer Mr. Canfor’s more accurate and detailed account of when the trees were cut. Mr. Winkler’s testimony was largely speculative in nature and devoid of satisfactory specific time lines regarding when the various trees were cut. I am satisfied that the prosecution has proven the time and place of the alleged charges. C. The Issue of Tree(

s) Unlawfully Removed, Injured or Destroyed Without a Permit The prosecution argues that no permit was ever applied for or issued by City of Hamilton officials to remove, injure or destroy any tree on the property. Mr. Canfor, a Forest Conservation By-Law officer with the City of Hamilton, was called upon by the prosecution to give testimony. He stated that he has over 30 years of forestry experience and has worked for the City of Hamilton since 1989. He stated in examination-in- chief that he is the only City of Hamilton official who has the authority to issue permits under the Ancaster By-Law . According to Mr.

Canfor, he knew for certain that no permits to anyone were issued for the property as none were ever issued by him for the period in question. The defendant does not dispute that he personally did not apply for a permit or permits to cut down trees contained on the Golf Links property. I am satisfied that trees were unlawfully removed, injured or destroyed on the Golf Links property without a permit. D.

The Issue of Whether the Trees are Heritage Trees The prosecution argues that each tree enumerated and outlined in the 56 charges against the defendant are Heritage trees as contemplated and defined by the Ancaster By-Law . The prosecution points that each tree at issue was identified, measured and catalogued by Mr. Canfor as can be seen in Exhibits 20 and 21. The prosecution maintains that Mr. Canfor has specialized skills and is the point person for the City of Hamilton in making such determinations. According to the prosecution, Mr.

Canfor was on the Golf Links property during the period in question, observed the trees during this period, assessed the trees during this period and came to the conclusion that each and every tree outlined in the charges against the defendant were Heritage trees of the type and size contemplated by the Ancaster By- Law. Mr. Canfor testified that a total of 244 trees were cut on the property of which 56 were over 46 cm. He stated that the 244 trees did not include any damaged or diseased trees and also did not include what he termed saplings. Mr.

Canfor stated that he took measurements according to the Ancaster By-Law requirements. According to Mr. Canfor, when measuring he would always “round it down, not up” in order to give the benefit of the doubt to whether the tree met the 46 cm threshold. He further stated that he only took measurements of trees that appeared healthy and alive. He acknowledged that although some trees that were measured had defects showing the existence of disease, in his opinion these defects did not affect the viability of those trees.

For example, he described tree number 50 in Exhibit 21 as having a defective core but the tree was still sound and described it as “rings growing happily over the defect.”

The defendant does not contest the identification of the trees as to their identity type or species but does contest how Mr. Canfor measured the trees to determine the minimum requirement of a 46 cm circumference. According to the defendant, the photographs in Exhibit 8 do not show Mr. Canfor taking measurements at breast-height as he is required to do. Furthermore, the defendant contests the accuracy of the measurements as several of the trees are directly at the 46 cm diameter demarcation point. Mr. Canfor was very detailed in his testimony respecting how he measured the trees.

He stated that tape measurements are more accurate but because in some cases he could not get around some trees he used calipers. According to Mr. Canfor for each tree he measured the widest and narrowest points at breast-height and then averaged the two measurements to determine the width. As has been noted above Mr. Canfor is a specialist in the area of forestry. He has performed his duties for many years and is the point person for the City of Hamilton on matters such as this. Mr. Canfor was confident that his measuring protocol was performed in a manner consistent with the Ancaster By-Law requirements.

The defendant adduced no alternative measurements to the court contesting the measurements taken by Mr. Canfor. The defendant’s assertions are largely based on Mr. Winkler’s

interpretations on how Mr. Canfor and some of the felled trees were situated in specific photographs. I prefer the detailed testimony of Mr. Canfor. I find no reason to doubt or otherwise question Mr. Canfor’s testimony. I am satisfied that the prosecution has shown to the satisfaction of this court that the trees in question are Heritage trees. E. The Issue of the Identity of the Tree Cutter

Section 4 of the Ancaster By-Law states: “Except for the areas of non-application (Section 3.2) and permit exceptions (Section 5.1) provided in this By-Law, no person or owner shall: (

i) remove, injure, or destroy a tree as prescribed by this By-Law without a permit; (ii) cause through an agent the removal, injury or destruction of a tree as prescribed in

Section 3.1 of this By-Law without a permit.” It is the prosecution’s position that the “person” who removed, injured or destroyed a tree or caused through an agent the removal, injury or destruction of a tree as prescribed in

section 3.1 of the Ancaster By-Law is James McNiven, the defendant. Exhibit 5 is a video taken by Sonya Newhouse when she attended the Golf Links property on August 9, 2014. In that video the defendant can be seen wearing a type of head-gear with a face-shield and holding a chainsaw. Sonya Newhouse attended the Golf Links property at that time after she heard chainsaws being used there and trees falling.

Meghan Newhouse who attended on the Golf Links property at the same time stated that “the trees that were coming down had green leaves.” On the Exhibit 5 video Meghan Newhouse can be heard speaking to the defendant. She is heard saying, “you are cutting down live trees you fucking idiot.” Meghan Newhouse positively identifies the defendant as the tree cutter. Referring to the defendant she stated, “I saw you … I saw you before … the person I saw was you.” Ms. Johanna Verbundt testified that she has known the defendant for years and spoke to him over the fence that separates her house from the Golf Links property.

She testified that she saw the defendant on the Golf Links property on July 30, 2014. She stated that the defendant stopped to say hello and the defendant told her that his chainsaw was out of gas. Ms. Verbundt indicated that she did not actually see the defendant cut any trees. Ms. Rose Lynn Burwell, also a neighbour of the Golf Links property, stated that she heard chainsaws and trees being cut during the period in question. She stated that it “looked like a tornado had gone through.” She further stated that she saw “no one but McNiven back there” but did not see him actually cutting any trees. Mr.

Christopher Newhouse stated that he was on the property on August 8, 2014 as he knew there was a stop work order but still heard chainsaws. Mr. Newhouse stated that he took the picture in Exhibit 9. According to Mr. Newhouse he heard the sound of a chainsaw and followed it and saw the defendant bent down cutting a tree. In the Exhibit 9 pictures one can see the defendant wearing a head piece with a face guard but it is acknowledged a chainsaw cannot be clearly seen.

Jay Berberick, a Municipal Law Enforcement Officer for the City of Hamilton, stated that when he attended the property he spoke withsomeone called Octavio who said to him that he was hired to cut down trees. Unfortunately, Mr. Berberick did not ask this Octavioperson the simple questions one would have expected of an officer attending to a place for a By-Law related matter, such as; who hiredyou, where is the person who hired you, how many trees did you cut, et cetera. The defendant argues that there is no direct evidence of him cutting down any tree during the period in question.

The defendant admitsto having cut trees on the Golf Links property in the past. According to the defendant unknown others have also accessed the Golf Linksproperty in the past and cut down trees. The defendant claims no knowledge of he being the person cutting down trees during the periodin question on the Golf Links property. I prefer the evidence tendered by the prosecution. The defendant has been situated on the Gold Links property during the period inquestion by several witnesses. He is seen on video wearing a head cover with a face shield and holding a chainsaw during the period inquestion.

During the same time witnesses have testified that they heard chainsaws and the noise of falling trees coming from the GolfLinks property. In Exhibit 5 the video shows that when the defendant was confronted by Sonya and Meghan Newhouse he did notcontest or otherwise dispute the fact that he was cutting down trees but instead ordered them to vacate the property. In his interactionswith Ms. Verbundt as described above he did not indicate in any way that he was doing anything but cutting trees. Instead, in hisconversation with Ms.

Verbunt during the period in question and while on the property, he made an utterance that his chainsaw was outof gas. Although it is not known who hired the Octavio person to cut down trees on the Golf Links property during the period in question, I notethat the defendant’s own testimony indicated that he has hired or otherwise worked with persons in the past to help him in his labours onthe Golf Links property. I am satisfied that the defendant was the person who caused the injury, removal or destruction of trees as outlined in the charges inquestion.

For the above reasons, I am satisfied the prosecution has proven the guilty acts beyond a reasonable doubt. F. Defences Strict Liability Offences Most offences enacted under provincial statutes and regulations are of “strict liability;” that is to say that the Crown is not required toprove the intent of the accused beyond a reasonable doubt. Regulatory offences created under provincial legislation are presumed to beof strict liability in the absence of expressions such as “intentionally” or “knowingly” indicating the presence of an offence requiringproof of intent.

In the presence of a strict liability offence, the fault of the accused is presumed; the latter has the burden of rebutting, by a balance ofprobabilities, the presumption of intent with a defence of due diligence or officially induced error. I am satisfied that this is an offence of ‘strict liability’ and that these defences are available to the defendant; R. v. Bedard [2009] O.J.No. 4720 (Ont. Prov. Ct.), R. v. Sault Ste. Marie, (SCC), [1978] 2 S.C.R. 1299. The Due Diligence Test The test laid out by the Supreme Court of Canada in Sault Ste.

Marie indicates that the defence is available to an accused if, on a balanceof probabilities, it is established that;

a) the accused believed in a mistaken set of facts which, if true, would render the act or omission innocent, or

b) the accused took all reasonable steps to avoid the particular event.” Mistake of Fact

The defendant claims that he was unaware that a permit was required. In R. v. Bulmer (SCC), [1987] 1 S.C.R. 782 the Court described the defence of mistake of fact as; “If an accused entertains an honest belief in the existence of a set of circumstances which, if they existed at the time of the commissionof an otherwise criminal act, would have justified his act and rendered it non-criminal, he is entitled to an acquittal.” The seminal case on mistake of fact is found in Pappajohn v. The Queen [1980] 2 S.C.R.

The court held that the defence was availablein Canada, that it goes to the question of whether the accused had the necessary mens rea for the commission of the crime involved andthat the mistaken belief upon which the defence rests need not be reasonable, if honestly held.

Simply put, a mistake of fact is a mistake not caused by the neglect of a legal duty on the part of the person making the mistake, andconsisting of (1) an unconscious ignorance or forgetfulness of a fact, past or present, material to the matter at issue; or (2) belief in thepresent existence of a thing material to the matter at issue which does not exist, or in the past existence of such a thing which has notexisted. This should be distinguished from a mistake of law which occurs when a party, having full knowledge of the facts, comes to anerroneous conclusion as to their legal effect.

It is a mistaken opinion or interference, arising from an imperfect or incorrect exercise ofthe judgment, upon facts. In R. v. Osolin (SCC), [1993] 4 S.C.R. 595 the court stated that the accused’s mere assertion of his belief is not evidenceof its honesty. The requirement that the belief be honestly held is not equivalent to an objective test of what the reasonable person wouldhave believed. But nevertheless it does require some support arising from the circumstances. A belief which is totally unsupported isnot an honestly held belief.

A person who honestly believes something is a person who has looked at all the circumstances and hasdrawn an honest inference from them. Therefore, for a belief to be honest there must be some support for it in the circumstances. A mere assertion is not sufficient. There must be an “air of reality” considering all the circumstances for the defence to be availableaccording to R. v. Park [1995] 2 S.C.R. Having said this, however, the issue here is much more simple. The defendant’s mistake was not of fact but of law.

In in fact the defendant truly did not know he needed a permit to cut down trees on the property this would not exonerate him from hisresponsibilities in any event. It is known that a mistake of fact is an excuse, which if accepted goes to the mens rea of the offence, but itis a well established legal principle that ignorance of the law is not accepted as an excuse.

Ignorantia juris non excusat or ignorantia legis neminem excusat is an ancient legal principle holding that a person who is unaware of alaw or its meaning, scope or application may not escape liability for violating that law merely because he or she was unaware of itscontent. A fundamental premise of this principle is to ensure that persons do not become a law unto themselves by either ignoringestablished law or picking and choosing which law one deems appropriate to follow. Every person then is considered to be equallyknowledgeable of the law and therefore equally liable if the law is not followed.

As has been observed by some legal observers, the cruxof the principle is about incentives. Ignorance is no excuse so one better inform oneself before doing the thing in question. This ancient maxim is most applicable in this case. The defendant did not inform himself to the extent required by law. He thereforecannot avail himself of this defence. Due Diligence Defence As to the issue of due diligence the seminal case is by the Supreme Court of Canada in R. v. Sault Ste. Marie, [1978} (SCC), 2 S.C.R. 1299; 5 D.L.R. (3d) 161.

It stands for the proposition that the Crown does not have to prove the existence of mens reabut only the actus reas of the prohibited act, and; “…leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what areasonable man would have done in the circumstances.” The defendant cannot succeed in the defence of due diligence for the following reasons.

First, the defendant did not take all reasonable steps to avoid the commission of the prohibited act. The decision in R. v. Courtaulds Fibres Canada [1992] O.J. No. 1972 (Ont. Prov. Ct) is instructive in stating; “Reasonable care and diligence do not mean superhuman efforts. They mean a high standard of awareness and decisive, prompt andcontinuing action.” The defendant’s actions as stated above do not show any satisfactory such actions on his part. He chose not to seek out the appropriate City of Hamilton officials before commencing his tree cutting on the Golf Links property.

Itappears he also did not seek the advice, legal or otherwise, of persons who could have provided him with the requisite knowledgeconcerning his plans. This court is satisfied that the defendant has not met the requisite standard. Second, the defendant did not do what a reasonable person would have done in the circumstances to avoid the occurrence of theprohibited act. The Ontario Superior Court of Justice, sitting as

summary conviction appeal court, finding in R. v. Stelco, (ON SC),[2006] O.J. No. 3332 (Ont. Sup. Ct.) stated that in order to sustain a due diligence defence the defendant had to show that his actions orinactions were objectively reasonable. “Due diligence imports a standard of objective reasonableness. An honest subjective belief is not enough.” The Supreme Court of Canada decision in R. v. Pontes, (SCC), [1995] 3 S.C.R. 44 sets factors to determine what actionsor inactions are required to constitute a strict liability offence.

Specifically, Justice Gonthier states; “An offence of strict liability requires the minimal mental element of negligence in order to ground a conviction. Negligence consists inan unreasonable failure to know the facts which constitute the offence, or the failure to be duly diligent to take steps which a reasonableperson would take.” The defendant claims that he did not know he needed permit to cut trees on the Golf Links property. This may be true but this court issatisfied that in the circumstances this belief was unreasonable.

Indeed, the court heard virtually every witness in this case indicate thatthey were of the belief a permit was required to cut trees. Yet, the defendant, a sophisticated person, maintains that he was blissfullyunaware. The actions and inactions of the defendant as highlighted above clearly shows this court that he did not take those steps that a reasonableperson would have been expected to take.

Officially Induced Error The defendant claims that he did in fact call City Hall to inquire about what he should do respecting the damaged and dangerous trees onthe Golf Links property and was told by an unknown person at City Hall that he did not need a permit. Furthermore, when he wasapproached by a Hamilton Police Services officer in August 2014, the officer told him that he could cut any tree he wanted on the GolfLinks property.

The exception to the fundamental principle of the law of Canada that “ignorance of the law is not an excuse” was first formulated by a minority concurring decision of Chief Justice Antonio Lamer in R. v. Jorgensen [1995] 129 D.L.R. (4th) (S.C.C.). This was a caseinvolving a charge of selling obscene material. He reasoned that; “While knowledge of the law is to be encouraged, it is certainly reasonable for someone to have assumed he knows the law afterconsulting representative of the state acting in a capacity which makes him [an] expert of that particular subject.”

Although the court did not rule on this issue in Jorgensen the analytical framework became established being adopted by lower courts and finally by the Supreme Court of Canada in Levis (City) v. Tetreault; Levis (City) v. 2629-4470 Quebec Inc., [2006] 1 S.C.R. 420 , 2006 SCC 12 . Chief Justice Lamer set out six elements to be established by an accused person in order to establish a defence or excuse of officially induced error. These elements are; 1 . The accused made an error of law or an error of mixed law and fact; 2 .

The accused considered the legal consequences of his or her actions before committing the prohibited act; 3 . The accused obtained advice from an appropriate official, such as a government official involved in the administration of the law in question; 4 . The advice received was on its face reasonable; 5 . The advice received was erroneous; and 6 . The accused relied upon the erroneous advice in committing the prohibited act.

Under Chief Justice Lamer’s test, if all six elements were clearly established the accused would be excused from committing the offence in spite of its wrongfulness and a judicial stay of proceedings would be entered. The Ontario Court of Appeal simplified the test for whether an accused may rely on the defence of officially induced error in Maitland Conservation Authority v. Cranbrook Swine Inc. as follows; (

a) The accused must have considered the legal consequences of its action and sought legal advice; (

b) The legal advice obtained must have been given by an appropriate official; (

c) The legal advice was erroneous; (

d) The person receiving the advice relied on it; and (

e) The reliance was reasonable. Unlike the defendant’s assertion of mistake of fact, his assertion of officially induced error is based on a different allegation of facts, that being that he was misled. The defendant’s interactions with both the unknown City Hall person who answered his telephone call and the Hamilton Service Police officer cannot assist the defendant in his pursuit of this defence.

Simply, they were not the “appropriate officials.” The Hamilton Police Services officer was performing a service function with no authority over any aspects of the legal permit issuance process as contemplated by the Ancaster By-Law. It is unknown who the City of Hamilton person was with whom the defendant interacted. No satisfactory evidence was adduced to show that such a person had authority to determine whether or not a permit was required in the circumstances outlined by the defendant.

Indeed, as has already been shown above, there was only one person that the defendant could have and should have turned to for advice and guidance on this matter and that person was Mr. Canfor. The defendant provided no credible evidence that he received an erroneous legal opinion or advice from an official “who is responsible for the administration of enforcement of the particular law,” as required by law and outlined in R. v. Cancoil Thermal Corp. There was an onus on the defendant to find the appropriate official and in this case it would have been Mr. Canfor.

I have significant doubts that the defendant was in fact given the advice he claims by either the Hamilton Police Services officer or the

Hamilton City Hall person. But if I am in error, which I do not believe I am, on the evidence adduced the defendant should not have relied upon it. Therefore even if the advice was given as stated by the defendant, this defence fails. Conclusion This was not a case of a few trees but many trees, some Heritage trees, being felled on the Golf Links property. Mr. Canfor described the Golf Links property after the cuttings as having no regular logging patterns and “chaos and destruction.” One witness described the Golf Links property after the cutting as if a tornado had gone through it.

The defendant’s assertions that he was acting in a purely altruistic manner with nothing but the best interests of others in mind is suspect. I acknowledge and accept the defendant’s strong attachments to the property. In his own testimony he admits to being on the property frequently. He has cut down trees, cleared parts of the property and otherwise worked the land. He acts in a manner of ownership of the Golf Links property. As previously stated the defendant’s relationship to the Golf Links property is shrouded in uncertainty and mystery.

For example, according to the defendant, he was informed by a friend who works in the insurance industry that there may have been liability issues after the ice storm as a result of damaged trees. According to the defendant, he was informed that if someone entered the Golf Links property there was a danger of injury to that person as a result of damaged trees and also a liability issue on the part of the owner of the Golf Links property.

I have no reason to doubt this but it raises the question of why did the defendant not then contact the owner of the Golf Links property to ensure appropriate measures were taken to address these concerns? There is no satisfactory evidence of such overtures. Instead, the defendant used this information as further reason to directly involve himself with the Golf Links property. Why would the defendant assume this responsibility? Why would he not seek guidance and assistance as to how best to secure the Golf Links property in light of the apparent danger? This makes no sense to me.

It was not satisfactorily explained. I am satisfied the defendant was not diligent in this matter. No reasonable person would destroy all these trees without first finding out if it was permissible to do so. The defendant took it upon himself to clear the Golf Links property of many trees including the Heritage trees at issue. It appears that the defendant did not consider the consequences of his actions or inactions.

He did not take the appropriate steps to make certain he was abiding by the governing laws, rules and regulations designed specifically to ensure environmental protection and to ensure the safe removal of trees. Considering all the evidence and submissions it is clear to me that the defendant was of a mind to do what he wanted to do on the Golf Links property without proper oversight or approvals. The court is satisfied that the prosecution has proven the guilty acts beyond a reasonable doubt. The defendant’s due diligence and officially induced error defences cannot succeed for the reasons provided.

There will be a finding of guilt. There will be convictions entered on each of the 56 counts. MS. CLAYTON: Your Worship,… HIS WORSHIP: Yes. MS. CLAYTON: …regarding sentencing,… HIS WORSHIP: Yes. MS. CLAYTON: …it’s my submission that we return on another day to provide submissions on sentencing, given the complexity of the issues. HIS WORSHIP: I would agree with that. I’ll listen to what Mr.

McNiven has to say but I would go one step further and ask that it be done relatively expeditiously and I would also suggest that it be done in written form, with specific time lines given, so that when we come back next time it would be for decision and not argument. So what I would suggest is I’m going to see – to stand down to see what my calendar is like next month and provide some weeks for yourself and Mr. McNiven to craft and share the submissions with respect to penalty and then a time limit with respect to providing that to me so that I can review it and I can be prepared for when we come back. MS.

CLAYTON: Thank you. Also noting the matters on the list in this courtroom today, I note that there are a few matters remaining on the 9:00 list and there are a few matters on the 1:30 list, four in fact, and it’s now quarter past 10:00. Did you want to stand down now and then deal with the return date before the lunch? HIS WORSHIP: I think so.

MS. CLAYTON: Thank you. HIS WORSHIP: Is that – anything from you, Mr. McNiven? Is that satisfactory to you? MR. MCNIVEN: Your Worship, I will need at least six weeks to consult with counsel… HIS WORSHIP: Okay. MR. MCNIVEN: …before submitting anything. HIS WORSHIP: Well,…. MR. MCNIVEN: So that’s it to the week of August the 13 th at the earliest. HIS WORSHIP: All right. So let me go and take a look at – let me see, it’s a quarter – why don’t we take our morning break at this time so I can also go and retrieve my calendar and when we come back, let’s say half an hour, we’ll decide some time lines. MS.

CLAYTON: Thank you. HIS WORSHIP: Thank you. COURT REPORTER: Order. Court is in recess for half an hour. R E C E S S U P O N R E S U M I N G: COURT REPORTER: Court is reconvened. You may be seated. HIS WORSHIP: Okay. So we’re canvassing times for the hearing on sentencing. Mr. McNiven says he needs about six weeks which would bring us to probably around, what, mid August? I have the 16 th of August, I’m in 320, so let’s start there first. Is that appropriate to everyone? MS. CLAYTON: The only thing with regard to August, Your Worship, is the Provincial Offences court is moving…. HIS WORSHIP: Yes. MS.

CLAYTON: …to the location across the street from where we are seated today. HIS WORSHIP: Yeah. MS. CLAYTON: That might be the – that adds a level of complication to prep I would say. HIS WORSHIP: But here is the issue, though. I’m not going to be here most of September and October… MS. CLAYTON: Thank you. HIS WORSHIP: …so it has to be done in August. MS. CLAYTON: Okay, thank you. HIS WORSHIP: I mean, I’m looking at as late as the 16 th . I see also here the 22 nd I’m in 300. MS. CLAYTON: Yes. I would prefer the 16 th , sir. HIS WORSHIP: What about you, Mr. McNiven? MR. MCNIVEN: I’d prefer the 22 nd .

HIS WORSHIP: I’m sorry? MR. MCNIVEN: The 22 nd . HIS WORSHIP: Not the 22 nd , I won’t even be here. I’m in – it looks like I’m in Burlington. It’s the – hold on here; no, no, the 22 nd – the 21 st I’m in Burlington. The 22 nd I’m in 300, the 16 th I’m in 320. So how is 300 then for you, Madam Prosecutor? MS. CLAYTON: Yes, it doesn’t matter to me which courtroom we’re in, sir. HIS WORSHIP: Okay. So let’s set out some parameters though. MS. CLAYTON: So then is that the 22 nd ?

HIS WORSHIP: 22 August. I am going to require written submissions and replies by the 30 th day of July, July 30 th . So - yes, Mr. McNiven? MR. MCNIVEN: I just contacted a lawyer who is, between holidays and other commitments, is not going to be able to complete anything until the beginning of August. HIS WORSHIP: What is - I’m sorry, what do you want him to do? MR. MCNIVEN: Well,…. HIS WORSHIP: I mean, you said you need to contact, so are you going to get – contact him, you’re going to get legal advice. What I’m asking for is written submissions with respect to the sentencing component of this matter. MR.

MCNIVEN: I realize. HIS WORSHIP: So this, as you know, has gone on – I would actually prefer that, you know, just give you and the prosecutor a couple of weeks as opposed to this length of time because it has gone on far too long but I am accommodating your request. I am not going to accommodate any further because your lawyer is not available. MS. CLAYTON: I can tell you, Your Worship, just for the purposes of the record, the prosecution is prepared to return at any point in time. HIS WORSHIP: Right. So very well, I’ll give you your extra – I’ll give you an extra week, Mr.

McNiven, and I will require the written submissions and replies with respect to sentencing on the 7 th day of August, August 7, 2018, and they are to be provided to me, both the prosecution and defence positions as well as any reply, so what I’m going to have is fulsome positions before the court. I need to be very clear on that. I don’t want to hear later on that I didn’t know what the prosecution gave you and I needed to respond to that, or otherwise from the defendant I didn’t know what the defendant’s position is and I didn’t get a chance to reply.

So again, August the 7 th , all materials, submissions and any replies to me so that I can have it looks like a couple of weeks to digest and do what I have to do with respect to a decision. MS. CLAYTON: Did you want to set out any specific dates, sir, with regards to when each party ought to be supplying material to the other… HIS WORSHIP: No. MS. CLAYTON: …or is this just the drop dead date? HIS WORSHIP: No. I’m going to – I’m going to rely on both of you to do what you have to do. I am not going to set out parameters of that nature. I mean, we’re all adults here; I don’t have to supervise that.

I’m just saying to you I don’t want to hear from anybody on August – after August 7 th that they did not get either notice or that they didn’t understand or that they otherwise did not provide fulsome positions because I am not going to tolerate that. We are already going longer than I would want but I am accommodating Mr. McNiven so let’s be very cognizant of what we are doing here, please. All right, thank you very much. MS. CLAYTON: Thank you. HIS WORSHIP: This matter then is adjourned to the 22 nd day of August, 2018, in courtroom 300. Let’s make that at 10:00 a.m.

This is a continuation of the McNiven matters for a sentencing hearing. Thank you. MS. CLAYTON: Thank you, sir. May I be excused? HIS WORSHIP: Please. MS. CLAYTON: Thank you. MR. MCNIVEN: Which courtroom is that? HIS WORSHIP: Right here. MR. MCNIVEN: Okay. Can I ask a question? HIS WORSHIP: Yes. MR. MCNIVEN: Is it correct that what you said in your ruling that the intent or the motive is irrelevant? HIS WORSHIP: Sir, I’m not going to go into anything at this time. My reasons stand for how I expressed them. I am now functis . I am not going to comment any further on it.

You are welcome to obtain transcripts and review them and do whatever you wish to do with them including, obviously, appeal. This is my decision, this is what I rendered, and we are at an end with respect to that component. We are now in sentencing mode. Thank you very much, Mr. McNiven. … Whereupon the matter is adjourned.