Her Majesty the Queen On the information of Fallyn Edwards, a peace officer - v. -, 2011 SKPC 177

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 177 Date: December 2, 2011 Ticket: 7284810 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen On the information of Fallyn Edwards, a peace officer - and - Bradley Toporowski Appearing: Mr. T. Healey For the Crown Self-Represented For the Defendant DECISION B. MORGAN , J [ 1 ] Mr. Toporowski is charged with breaching Regulation 28(5) of the Regulations passed pursuant to The Parks Act , c. P-1.1 S.S. 1986, as amended. That

section reads: 28(5) No person shall dock, moor or leave a water vessel:

(

a) in park land; or (

b) in any waters in or adjacent to park land; except in an area designated for that purpose pursuant to subsection (6). [ 2 ] Section 28(6) reads:

(6) For the purposes of subsection (5): (

a) the minister may designate an area of: (

i) park land; or (ii) waters in or adjacent to park land; as an area where a water vessel may be docked, moored or left; and; (

b) where the minister designates an area pursuant to clause (a), the minister shall cause signs to be posted, in those locations the minister considers appropriate, identifying the area as an area where docking, mooring, or leaving may take place. [ 3 ] The power to make such Regulations is set out in s. 27 of the Act , which states that the “Lieutenant Governor in Council may make regulations for the protection, care, management, control, maintenance and improvement of park land, and without limiting the generality of the foregoing, may make regulations ...”, following which a number of specific instances are set out. [ 4 ] The evidence is based on that of three enforcement officers, each working at Candle Lake Provincial Park in Saskatchewan, which is “park land” as defined by the Act.

Fallyn Edwards testified that, on June 25, 2011, she was working, and in uniform, when she went to a beach adjacent to the Sandy Bay campground. She noted two boats “really close in to the beach area”, one of them being a boat operated by Mr. Toporowski. (A boat, not surprisingly, falls within the definition of a “water vessel”.) That particular boat, as she put it, was “right in the middle of the beach by the red marker”, the red marker being an indicator of an unsupervised beach area. She testified that the boat was backed onto the sand, that Mr.

Toporowski was standing on a platform at the back of the boat, and what she presumed to be members of his family were standing beside the boat. She testified that there was a safety issue engaged when boats were in such close proximity to a swimming area. She further testified that the area the boat was in was not a designated mooring place. [ 5 ] Officer Edwards asked Mr. Toporowski to leave, explaining the reasons why, and explaining the legislation. Mr.

Toporowski indicated in clear language he did not believe her, that he was not moving his boat, and that he had been parking there on a regular basis for years. He insisted she get “the conservation officer” to come to discuss the matter further. [ 6 ] Officer Edwards, in an effort to be reasonable and avoid a confrontation, then contacted Celeste Savard, who stated that she was a seasonal conservation officer, who in turn contacted Ryan Tourond, also a seasonal conservation officer, both of whom went to the campground area, met with Ms.

Edwards, and reviewed the applicable legislation in an effort to decide what to do. All three of the officers then went back onto the beach, where Mr. Toporowski, and his boat, remained. According to Officer Savard, Mr. Toporowski, when asked to leave by Officer Tourond, stated that he wasn’t going to leave because there weren’t buoys marking the beach. Officer Tourond explained that he was in an area that he was not authorized to be in, and Officer Tourond pointed to where there was a designated mooring area, not too far distant from the beach area. Mr.

Toporowski refused to go there, saying there were too many rocks. [ 7 ] Officer Savard testified that Officer Tourond then asked Mr. Toporowski to define what he felt the beach area was, and that Mr. Toporowski then pointed out an area that encompassed the very area in which he was standing. Mr. Toporowski then claimed that his boat was not on the beach; rather, it was in the water. [ 8 ] Officer Tourond also explained, both to Mr. Toporowski, and at trial, that there is no need for buoys to mark the beach.

[ 9 ] Officer Edwards also gave evidence that the beach area she spoke of was marked as well by a sign facing the parking area.

Section 61 of the Regulations allows the minister to designate swimming and beach areas, and whereas it is mandatory for the minister to place signs or standards identifying an area as such, the location of such signs is up to the minister. [ 10 ] Mr. Toporowski, being unwilling to accept the explanations, and continuing to refuse to move his boat, was issued a ticket under s. 28(5) of the Regulations . [ 11 ] Mr.

Toporowski’s argument was that there were no signs posted indicating that boats were not allowed on the beach, and that there are buoys defining all the other beaches, arguing that there was a need to have buoys on this beach. Respecting the lack of a sign prohibiting boats from being in the area, he likened the situation somewhat to speed zone signs being placed in school areas, arguing that, if there is no decreased speed zone sign present in a school area, it would be unfair to ticket a driver. [ 12 ] Mr.

Toporowski’s argument respecting the beach not being marked by buoys, or a sign, does not afford a defence in this case. [ 13 ] With respect to Mr. Toporowski’s argument as to a lack of signage designating the area as a beach, the Regulation is clear that the only place one can dock, moor or leave a water vessel is in an area specifically designated for that purpose. Thus, it is not a matter of being prohibited from mooring, docking, or leaving a boat only where signs state you cannot; it is rather a matter that you cannot do so unless a sign states that you can.

Further, the beach area was marked. [ 14 ] Even if buoys were needed to mark a beach area, (which Officer Tourond states is not the case), it still doesn’t answer the simple question of whether or not one can dock, moor or leave a water vessel in any area other than one designated for that purpose. [ 15 ] As well, all the enforcement officers made it clear to Mr. Toporowski that he was in fact on a beach, and he was given numerous opportunities to simply leave. Further, his own argument was that he had, based on what he told Officer Edwards, been parking in that same area for years.

If he could not identify that area as a beach area after all that time, and in these circumstances, he simply isn’t prepared to accept any evidence that doesn’t support his view. However, as stated throughout this decision, it really doesn’t matter to this charge whether or not his boat was in a beach or swimming area, even though it clearly was. The question is whether or not he was in an area designated for the mooring, docking, or leaving of a water vessel. [ 16 ] None of those terms are defined in either the Act or the Regulations .

Each is defined in The Concise Oxford Dictionary , (10th ed. 1999), as follows: “moor” - make fast (a boat) by attaching it by cable or rope to the shore or to an anchor; “dock” - (with reference to a ship) come or bring into a dock; “leave” - to go away from. Depart from permanently; he left home at 16. ...abandon (a spouse or partner). ... Allow or cause to remain. [ 17 ] Mr. Toporowski allowed or caused his boat to remain in an area that was not designated for such purpose, in contravention of the Regulation under which he was charged. He is guilty of the offence. B. Morgan, J