2017 QCCQ 21235, 2017 QCCQ 21235

Municipality of Bristol c. Roth 2017 QCCQ 21235 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF PONTIAC « Criminal and Penal Division » N° : 555-61-000867-163 555-61-000450-150 DATE : July 6, 2017 ______________________________________________________________________ PRESIDED BY MADAM JUSTICE CHRISTINE AUGER JUGE DE PAIX MAGISTRAT ______________________________________________________________________ MUNICIPALITY OF BRISTOL Plaintiff c.

MARTIN ROTH AND RUTH STURZENEGGER Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Defendants contest infractions in virtue of the Act Respecting the Land Use and Planning [1] and the Bristol Municipal By- law, as follows 555-61-000867-163: under

section 4.66 of the Bristol Municipal by law 264, on or around Feb 10 th 2015, with respect to a property 7 10 th line, lot 13b, Range 9, the Defendant did harvest volume of wood higher than 175 cubic meter without obtaining a certificate of authorization 555-61-000450-150: under

section 4.6.7/4.6.9 of the Bristol Municipal by law 264, on or about February 10th 2015, with respect to the same property, to have felled trees or had made felling of trees done, exceeding the maximal harvest volume allowed in an area of 4.7 hectares. [ 2 ] The fine claimed by the Prosecution is 35 500$, that is 7 500$ per hectare, for 4.7 hectares for a total of 30 000$ in addition to 5 000$ for the stumps exceeding the maxim, for a fine total of 35 000$. [ 3 ] The Act Respecting land use [2] states in

section 113 that “the council of a municipality may adopt a zoning by-law for its whole territory or any part thereof” and “a zoning by-law may include provisions regarding one or more of the following objects”, such as “ (12) to regulate or restrict, by zone, the excavation of the ground, the removal of humus, the planting and felling of trees and all works of clearing and filling; to compel any owner to put grass, shrubs or trees on his landsite” and (12.1) to regulate or restrict the planting or felling of trees to ensure protection of the forest cover and promote sustainable development of private forest”. [ 4 ] The penalty under

section 233.1 for any contravention states that the “ minimum fine for felling trees in contravention of a regulatory provision adopted under

section 79.1 or either of subparagraphs 12 or 12.1 of the second paragraph of

section 113 is $500 plus, (1) for felling trees on less than one hectare of land, an amount varying from $100 to $200 per tree illegally felled, up to a total of $5,000; or (2) for felling trees on one or more hectares of land, a fine varying from $5,000 to $15,000 per hectare deforested, in addition to an amount determined in accordance with subparagraph 1 for each fraction of a hectare.The amounts specified in the first paragraph are doubled for a second or subsequent offence. [ 5 ] Before proceeding on the merits of the case, the court was seized with a Motion to dismiss under section 184 (1) [3] and 184 (5) [4] of the Code of penal procedure [5] .

Motion to Dismiss [ 6 ] While the Defendant does not put into question the established principle as outlined in Multiple Access Ltd. C. McCutcheon [6] ,

that any conflict of laws is resolved by the criteria of the impossibility of compliance under both legislations , it is argued that the Defendants are subject to the same offence under both legislations that carry the same penalty. [ 7 ] The Defendants outline the provision of the municipal by-law 264 offence as well as that under the Act Respecting the preservation of agricultural land and agricultural activities (hereinafter “LPTAA”), emphasizing that the provincial legislation, by way of

section 98, supersedes the municipal by-law in case of conflict, therefore rendering inoperable sections 4.6.6 and 4.6.9 of By-law 264. [ 8 ] It is argued by the Defense that because

section 98 of the LPTAA supersedes any municipal by-law that is incompatible with the LPTAA , there is double jeopardy because of the fact that there is a similar infraction and penalty provided in sections 27 and 90 of the LPTAA as is under sections 4.6.6 and 4.6.9 of By-law 264. [ 9 ] The Defendants are accused of cutting and/or felling maple trees without having initial authorization by the Commission de protection du territoire agricole du Québec (hereinafter “CPTAQ”), contrary to

section 27 of the LPTAA which carries the same penalties as in the municipal by-law. [ 10 ] The question to be determined by the Court is whether or not

section 98 of the LPTAA is incompatible with By-law 264, sections 4.6.6 and 4.6.9. [ 11 ] Provision 98 of the LPTAA states that: “The Act prevails over any inconsistent provision of a general law or special Act applicable to a community, or to a municipality.” “It also prevails over any incompatible provision of a metropolitan land use and development plan, an RCM land use and development plan, a master plan or a zoning, subdivision or construction by-law.” “A person who obtains an authorization or a permit in accordance with this Act or who exercises a right conferred on him or recognized as his right by this Act is not exempt from applying for a permit otherwise required pursuant to

an Act, a government regulation or a municipal by-law.” [ 12 ] As relates to any possible conflict in this legislation concerning tree cutting, or specifically as relates to a sugar bush, the LPTAA provides in

section 27 that “n o person may, except with the authorization of the commission, use a sugar bush situated in a designated agricultural region for any other purpose, nor fell maple trees there, except for the purposes of selection or thinning within the framework of forest management”. [ 13 ] In particular to this case, the LPTAA does permit the Commission [7] to authorize, according to conditions “ the use, for purposes other than agriculture, the subdivision, the alienation, the inclusion or the exclusion of a lot or the cutting of maple trees” and “take into consideration, (1) the soil capability of the lot and of the neighbouring lots ; (2) the possible uses of the lot for agricultural purposes;” [ 14 ] At the outset, certain principles must be adhered to willing that without any conclusion of conflict, no exclusion of legislation must be permitted [8] .

For there to be an operational conflict, there must be a finding that compliance with one legislation must lead to absence of compliance with another piece of legislation. [ 15 ] In the Spraytech [9] case, it was concluded that the habilitating legislation,

Loi sur les pesticides , did provide that municipal authorities could adopt by-laws having the same object, pesticides, that are complementary and consequently, “compatible”. [ 16 ] Have the Defendants succeeded in demonstrating to the Court their impossibility to conform to both Bristol Municipal By-law 264 and

article 98 of the LPTAA? [ 17 ] Should the Court conclude that both legislation are complementary, and consequently “compatible”, the Motion to dismiss must be denied. In Bois et Placage Généraux Ltée c Longueuil (Ville de) [10] , the Court emphasized the principle that municipal by-laws that simply complement or give value to a provincial law do not invalidate the application of the municipal by-law and that a true operational conflict must be found by the Court. [ 18 ]

Section 113 of the Act Respecting Land Use and Development states that a Municipal Council may adopt a by-law on a part or the whole of their jurisdiction, including and not limited to, as stated in sub-section 12.1, governing or restricting the plantation or cutting of trees in order to ensure protection of forest cover and favor longstanding use of the private forest. [ 19 ] Any contravention to

section 113, sub-section 12 or 12.1 carries a penalty depending on the surface area cleared [11] . [ 20 ] The LPTAA , in

section 1 qualifies a sugar bush as « a forest stand, covering an area of at least four hectares, suitable for the production of maple syrup”. [ 21 ] The objective of this legislation is clearly stated out in

section 1.1 as “ agricultural land preservation regime established by this Act is to secure a lasting territorial basis for the practice of agriculture, and to promote, in keeping with the concept of sustainable development, the preservation and development of agricultural activities and enterprises in the agricultural zones established by the regime”. [ 22 ] The objective arising from the Municipality of Bristol by-law 264 is essentially the same. It reads:

Section 4.6.6 – Provisions concerning the preservation and harvesting of trees in the forestry, agricultural, agro-forestry and recreational land use designations , which stipulates: “ The obtaining of a certificate of authorization with regard to the cutting of trees is mandatory to harvest a volume of wood equivalent to 175 cubic meter or more per year. This provision applies to all the lots of each landowner.” [ 23 ] In fact, the by-law does not prevent the Defendant’s from cutting trees, but ir prevent complete clearing for certain trees and requires some residual forest coverage of 16 meters per hectare.

[ 24 ]

Section 90 of the LPTAA does carry the penalty provision for contravention to

section 27 for a first offense “ to a fine of not less than $5,000 for the first hectare of land used unlawfully and of not more than an additional $15,000 for each additional hectare or fraction of a hectare.” [ 25 ] In the event the Defendant obtains a permit from the CPTAQ, there is no dispense from the obligation to adhere to the Municipal requirement. Obtaining an authorization from one authority does not render impossible to obtain required authorizations from the other [12] . [ 26 ] The Court of Appeal in Ferme Geléry Inc. c. Laverlochère (Municipality) [13] concluded that

section 98 of the LPTAA does not prevent any municipality from adopting of regulation in an agricultural zone and does in fact confirm that a municipality can adopt the appropriate measures. [ 27 ] The Superior Court in Gélinas c. Grand-Mère (Ville) [14] reiterated the principle that the LPTAA does not withdraw the regulatory power of a municipality in an agricultural zone.

Most importantly, this case specified that when a Court concludes as to an operational conflict it must do so on the basis of a conflict between a specific provision of both legislations and not the general statement of the legislation. [ 28 ] In addition, the Court must consider the presumption of validity as stated in Sullivan on the Construction of Statutes [15] , that “ while acknowledging that there was a potential for conflict when different bodies were authorized to regulate the same subject matter, the Court found that potential conflict was not enough”.

The Drainmar Inc . case clearly stated the municipal by-laws are presumed to respect the limits posed by the legislature in its governing legislation. This is the reasoning behind the

interpretation to be privileged when two

interpretations are possible. It is required that the Courts favour the

interpretation that will affirm the validity as opposed to that which will invalidate the provision.

The proposition that potential inconsistency does not constitute conflict is also supported by the presumptions of validity [16] and coherence [17] . [ 29 ] The principle of coherence is based on the premise that all provisions of legislation are drafted to work “together, both logically and teleologically, as part of a functioning whole” and “are presumed to work together dynamically”, “against internal conflict” and that the “legislature did not intend to make or empower the making of contradictory enactments”. [18] [ 30 ] The principle of overlap should be applied when two provisions are applicable without conflict to the same facts and that “each is meant to operate fully” as in federal-provincial context [19] or municipal-provincial context.

The Ville de Hudson case, upheld this principle and the analysis was reiterated by the Supreme Court. [ 31 ] The Petitioner has the burden of demonstrating the operational conflict. That has not been done. Given that no documents have been given to the Commission and no decision has ever been made concerning the required authorization, the conflict is a remotely potential one at best. [ 32 ] In fact, the evidence lead was to the effect that the CPTAQ hearings were suspended in order to allow the Defendant to file an expert report, by a forest engineer, that the area was not a sugar bush.

However, at the time of trial, this had not been done by the Petitioner. [ 33 ] The Defendants invoke under section 184 (1) a possible double jeopardy or res judicata. R v. Allison and Direl (1983) 38 C.R. (3d) 333 [20] defined res judicata as “an act which underlies an offence or

an act which forms part of a series of connected acts which make up the factual basis of an offence resulting in a conviction cannot be used to constitute the factual basis of a conviction for a conviction for another offence and codified in

section 12 of the Criminal Code as “something that has been clearly decided”. Double jeopardy is a mesure of procedural fairness wherein once an accused is tried for an offence and finally acquitted or convicted, that person may not be placed in jeopardy a second time [21] . [ 34 ] The facts as they stand at the time of trail do not present any situation in which the Defendants require any mesures of procedural fairness as relates to any prior matter which has clearly been decided or any peril of condemnation.

The Motion to dismiss under section 184 (1) is denied. [ 35 ] Based on the governing principles and guidelines established by the Supreme Court, the Court makes no finding of any operational conflict between the application of sections 4.6.6 to 4.6.9 of the Municipality of Bristol By-laws and articles 27 and 90 of the LPTAA. The Motion to dismiss under section 184 (5) is denied. [ 36 ] Sections 4.6.6 to 4.6.9 do not prohibit agriculture but they do however, provide a framework in order to protect certain populations of trees and determine the partial forest coverage that must be maintained.

Hearing on the merits [ 37 ] The Court now turns to the analysis of the case on the merits. [ 38 ] The question to be determined is whether or not the Prosecution has proven beyond a reasonable doubt the harvest area in excess of the maximal harvest volume allowed without the required authorization. Prosecution evidence [ 39 ] The Municipality submits that the area in question was subject to a massive cut, a complete clearing.

In terms of jurisdiction, the CPTAQ determines maple bush and protection of agricultural zones. [ 40 ] The Municipal inspector, Isabelle Lajoie, served a Work Cessation Order February 10 th 2015 following a site inspection that ordered that all workers suspend their work in progress. No permit had been acquired and no silvicultural prescription had been provided and more importantly, the cutting took place in an area protected by the CPTAQ due to the concentration of maple trees.

[ 41 ] The expert witness Pascal Audet filed a report on March 31 st 2015 concerning the surface area of clearing on the forest at 7 10 th Line Road, on two separate zones evaluated the tolerant deciduous zone and the resinous zone. [ 42 ] He received the mandate from the municipal inspector Isabelle Lajoie and visited the Defendant’s property with her on the 17 th of March and photographs were taken.

He concluded that the trees had been cut in the winter of 2015. [ 43 ] The expert describes that the method used was by the taking of samples of the stumps and logs on the property by type of tree and diameter. [ 44 ] Firstly, with the use of pre-established tables of conversion, he converts the diameter of the log/stump to the height [22] . Secondly, a reference table by the Ministry of Natural Ressources is used to obtain the volume of each log [23] .

Thirdly, the type of tree population is determined, 70% maple trees and 30% of tolerant deciduous. [ 45 ] For the tolerant deciduous zone under the jurisdiction of

section 4.6.7 of the by-law, a majority of the trees cut were maple trees (hardwood) on a total of 4.1 hectares, within a margin of error of approximately 1 % or 500 square meters. The expert is able to establish the type of tree cut by the stumps/logs and the bark. The total of cuts were 360 logs per hectare and the expert concluded that 98% of the coverage was cut. [ 46 ] For the resinous zone under the jurisdiction of

section 4.6.9, a majority of the trees were evergreen with no margin of error. He established a very fresh cut, with no snow on the stumps/logs, branches and trunks on the road. The stumps provide a lot of information including and not limited to the age, being that the sun changes the color of the wood. This second zone was a clear cut for 425 logs by hectare, on a surface area of .6 hectares and 100% of the forest cover was cut.

Many trees were not mature and only 18% were over 36 cm in diameter. [ 47 ] The volume of wood harvested is 780 cubic meters from the samples taken, determined by the diameter of the trees. [ 48 ] In fact, Defendant’s intent before the CPTAQ (La Commission de protection du territoire agricole du Québec) was to prove that the area of the harvest was not a sugar bush and suspended the hearing to allow Defendant time to submit expert evidence to that effect. [ 49 ] It is a fact that the law provides a provision [24] for a retroactive permission filing for authorization to cut a sugar bush, but as of February 2015, nothing had been filed. [ 50 ] The Court concludes that the evidence [25] filed by the Prosecution on all of the elements of the infractions as charged is beyond a reasonable doubt Defense [ 51 ] The Defendants’ position is very clear at the outset of the hearing.

Mr. Roth is a farmer, primarily wheat, corn and wood harvest. He owns several bush lots spread out in a 30 km perimeter, in three counties, approximately 1 800 hectares, of which 800 hectares that he owns and 1 000 that is rented. [ 52 ] For the last fifteen years, he has cut wood for harvest that he sends to the mill for profit. He uses the bigger lots, the flat arable land, for crop harvest. [ 53 ] Close to his residence on his property, the litigated area, there was a bush that had no value that used to be cover pasture. He was not aware that he required a permit to cut trees on his property.

Amongst all the land he owns across the area, he believes that Bristol is the only Municipality that requires permits of this nature. The Court did take notice the lack of Defendant’s confirmed knowledge about what his obligations are in the other Municipalities. The intention was to clear the lots to provide additional land for traditional crop harvest. As, well the Defendants “harvest” the wood as a farming activity, for profit. [ 54 ] It is very surprising indeed that after having received the present charges, Mr.

Roth would not have had more knowledge about what is required elsewhere and under what circumstances, on his other lots. [ 55 ] Mr. Roth’s made his position quite explicitly known that nobody is going to tell him how to manage crop, except perhaps the CPTAQ. Due diligence defense / reasonable error of fact [ 56 ] The defense submits that he has proven on a balance of probabilities a defense of due diligence, in particular a reasonable error in fact, in virtue of the standing and criteria outlined in the Supreme Court cases Ville de Lévis c. Tetrault [26] Sault Ste-Marie [27] .

The Defendant owns land in various municipalities and to his knowledge, there are no such by-laws. He had an honest and reasonable belief that no permit from the Municipality was required. [ 57 ] The case law on the evidence required for a defense of due diligence is quite clear. The Court must obtain from the evidence all of the measures taken by the Defendants in order to avoid the commission of the infraction as outlined in Sault Ste-Marie. In addition, the Court must be satisfied that the measures taken were proactive and that active measures were undertaken.

In the present case, to accept the defence, the Court must make a finding that the Defendants conducted themselves in a manner equivalent to a reasonable person in the same circumstances attempting to find out what their obligations are. [ 58 ] On the evidence, the Court understands that Mr. Roth has been conducting himself in a certain way for a period of 10 years and he was unaware a permit was required. The 4.7 hectares cut were on his land, and as a farmer conducting his farming activities, wood harvest is part this activity.

As well, he needs to clear flat arable land in order to access larger parcels and therefore harvest greater volume of crop. This is how he manages his crop and he requires, to his knowledge, no authorization and has the freedom do as he sees fit on his land.

[ 59 ] A large part of the testimony dealt with the importance of agriculture in our society, a reality that the Court acknowledges and agrees with wholeheartedly. However, the Court’s role is to analyse all of the evidence within the confines of the law and not make a finding as to societal values. [ 60 ] The Municipal by-law in

section 4.6.8 requires a minimum of 16 square feet per hectare for residual forest coverage, equivalent to 16 trees per hectare. On the Defendants’ property, the uncontested expert evidence demonstrates that one tree per hectare was left. [ 61 ]

Section 4.6.7 applies to the tolerant deciduous trees. The Municipal by-law requires a maximum of 30% of the forest coverage to be harvested. Again, the expert evidence shows that in fact 98% and 100% was harvested. [ 62 ] The Defendants harvest produced a total of 780 cubic meters without any authorization. [ 63 ]

Section 4.6.9 applies to maturity of a tree population, pertinent to the evergreen sector. The surface of the wood harvest was .6 hectares that respects the maximum allowed area of 10 hectares. However, the by-law requires that the tree must have reached maturity before being admissible to cut and that is a diameter of 36 cm or more.

The expert concluded that only 18% of the logs cut had such a diameter. [ 64 ] In addition to the non-compliance of the municipal zoning by-law 264, because the wood harvest was comprised of maple harvest of more than four hectares in an agricultural zone that requires prior authorization from the “Commission de la protection du territoire agricole du Québec” [ 65 ] The Court has no evidence on record that permits a conclusion on a balance of probabilities, that the Defendant took steps to avoid the commission of these infractions.

No permits were ever sought, nor any clear intention to do so, as the Defendants claim they had no knowledge that they were required to do so. That is the extent of the explanation. There is no demonstration that the Defendants’ had an honest and more importantly a reasonable belief that they could act in this manner.

On the evidence, the defense of reasonable error in fact. [ 66 ] The mere fact that the Defendants have been operating for a large number of years with a relatively important land ownership size is at the forefront of the analysis considered by the Court in the evaluation of the defense of reasonable diligence. Over this span of time and the expertise he has acquired in crop management, it is entirely reasonable to expect that Mr.

Roth would have all the information at his disposal or at the very least know where to obtain it from the different jurisdictions he operates in, in order avoid committing these infractions. [ 67 ] For reasons only known to the Defendants, they chose to act otherwise without any prior attempt at obtaining the appropriate information from resources fully at the disposal. The defense of reasonable diligence has not been proven on a balance of probabilities.

FOR THESE REASONS, THE COURT: Declares the Defendants guilty on both matters to the infractions as charged. __________________________________ JUSTICE CHRISTINE AUGER, J.P.M . M e Alexandre Racine Goyette Municipality of Bristol Me Denis Turcotte Defendants Date of hearing : December 5th, 2016