R. v. Ambrosi, 2012 BCSC 409

THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Ambrosi, 2012 BCSC 409 Date: 20120321 Docket: 86925 Registry: Kamloops Regina v. Daniel Ambrosi Valleyview Enterprises Ltd. Before: The Honourable Mr. Justice Harris On appeal from: The Provincial Court of British Columbia, August 19, 2010, ( R. v. Ambrosi & Valleyview Ent. Ltd ., Kamloops 86925) Reasons for Judgment Counsel for the Crown: Joel Gold The Appellant Daniel Ambrosi: In Person Place and Date of Hearing: Kamloops, B.C. January 31 and February 1, 2012 Place and Date of Judgment: Kamloops, B.C. March 21, 2012 Introduction [ 1 ] This is a

summary conviction and sentence appeal. The trial involved regulatory offences alleged to have been committed by the appellants in connection with the operation of a landfill by the corporate appellant. Specifically, it was alleged that each appellant had breached requirements of the permit under which the landfill was operated. [ 2 ] On August 19, 2010, both Mr. Ambrosi and Valleyview Enterprises Ltd. were convicted by the Honourable Judge C.D. Cleaveley of two offences each contrary to provisions of the Environmental Management Act , S.B.C. 2003, c. 53 [the EMA ].

First, both appellants were convicted of failing to comply with the requirements of a permit, by failing, between April 1, 2007 and October 31, 2008, to compact the demolition, land clearing, and construction of solid wastes in a landfill and apply cover materials acceptable to the Regional Waste Manager no less than once every five days of operation, contrary to s. 120(7) of the EMA . Second, both appellants were convicted of failing to comply with a requirement of the permit by failing to submit an annual report by March 31 of each year, contrary to s. 120(7) of the EMA .

The years in issue were, at least, 2007 and 2008. [ 3 ] Both appellants were acquitted of charges that they had failed to maintain adequate on-site firefighting systems to extinguish accidental fires and to prevent fires from spreading to surrounding areas, contrary to s. 120(7) of the EMA . [ 4 ] The appellants were sentenced on March 31, 2011. They were ordered to pay the City of Kamloops the sum of $31,394.11, pursuant to s. 127(1) (

i) of the EMA . Valleyview was fined $10,000 on the count of failing to apply cover materials at the landfill and $2,500 on the count of failing to file annual reports. Mr. Ambrosi was fined $5,000 in respect of each conviction. [ 5 ] Mr. Ambrosi represented himself and the company at trial and at sentencing. The trial lasted five days. The proceedings on sentencing took place over six days. [ 6 ] At the beginning of this appeal, the Crown raised a preliminary objection to the appellants being represented on the appeal by Mr. Lindsay. Mr. Lindsay is not a lawyer. He purported to appear as agent to Mr.

Ambrosi and the company. I ruled that Mr. Lindsay was not a suitable person to appear as an agent. Accordingly, I denied him the right of audience. The reasons for my ruling were given orally. [ 7 ] Having made that ruling, I advised Mr. Ambrosi that I would consider a request for an adjournment so he and his company could be represented on this appeal by counsel. The appellants elected to proceed with the appeal. When court reconvened after my ruling, I was handed a note by Mr. Ambrosi.

The material portions of the note read as follows: Please be advised that I am unable to present my appeal orally to the court on my own behalf as well as that of the corporate appellant. As a result, I am required to have our appeal heard based on our written submissions.

I am respectfully requesting permission to file a supplementary 3-4 page argument by tomorrow at 4 p.m. to supplement our lack of oralrepresentations to the court. This is critical for us, especially upon the defence appeal issue respecting the sentencing fines. We havecome upon some short but important issues that we believe to be important to our appeal, which would be expressed orally but which isrespectfully not possible.

I will also file therein, a short list of corrections to some referencing errors in our written argument. [8] I agreed to, and did the next day, receive those additional supplementary submissions. I also reminded Mr. Ambrosi of hisright to make oral submissions, which he declined to exercise. The appeal then proceeded with the Crown making its oral submissions. [9] For the reasons that follow, I have concluded that none of the grounds of appeal are meritorious. I dismiss the appeal.

Issues on Appeal [10] The appellants raise eight grounds of appeal, five relating to the conviction and three to that part of the sentence orderingpayment to the City of Kamloops of $31,394.11. [11] On the conviction the appellants allege the following errors: 1. The charges do not allege offences known to law and in wrong capacity. 2. The Trial Judge erred in his failure to warn the appellant prior to giving his own evidence. 3.

The appellants were denied a fair hearing due to their want of understanding of the proceedings and the failure to appoint counselor to adjourn to permit the appellants to obtain necessary legal advice, after the Judge made such judicial findings ex mero muto. 4. The informant, Mr. Dahl, did not possess reasonable and probable grounds to lay the charges. 5.

Ministry officials were estopped from laying the charges, due to their failure to notice the appellants of any alleged failure tocomply with its Permit, representing to the appellants that the Ministry was not enforcing specific Permit obligations upon the appellants. [12] On the sentence the appellants allege the following errors: 1. The Trial Judge was without statutory jurisdiction to impose the fine or order of [$31,394.11], for fire suppression costs. 2.

Alternatively, the Trial Judge erred in relying upon a different provision of the Act to impose this fine not relied upon by theCrown nor the appellants and failing to permit the appellants to make representations on this new issue. 3. Alternatively, the Crown on behalf of the City of Kamloops, was estopped from claiming this aforementioned fine relief, orminimally in the quantum sort and ordered, resulting from the City's failure to equip the appellants with reasonable and appropriatewater and fire protection services required pursuant to the property taxes paid for by the appellants to the City.

The City was theproximate cause of these extra firefighting costs, not the appellants. Analysis The Trial Judgment [13] The trial judgment begins by noting that Valleyview was granted a permit on August 27, 1981, under the provisions of thethen Pollution Control Act, R.S.B.C. 1979, c. 332, to operate a landfill. Mr. Ambrosi is the principal and operating mind of Valleyview. [14] The charges arose as a consequence of a fire at the landfill on June 20, 2007.

The trial judge referred to the permit whichrequired the permittee (Valleyview) to apply cover material acceptable to the Regional Waste Manager no less than once every five daysof operation; to maintain adequate on-site firefighting systems to extinguish accidental fires and to prevent fires from spreading tosurrounding areas; and to submit annual reports. [15] As the trial judge noted, the offences with which each defendant was charged are strict liability offences. Referring to R. v.Sault Ste.

Marie, (SCC), [1978] 2 S.C.R. 1299, he said "[t]he onus is on the Crown to establish the prohibited actsbeyond a reasonable doubt. This leaves it open to Mr. Ambrosi and Valleyview to avoid liability by establishing, on the balance ofprobabilities, that they took reasonable care in the circumstances, or acted with due diligence”. [16] The learned judge concluded that the Crown had established the prohibited acts in respect of the failure to compact and coverand the failure to file annual reports.

The evidence in support of those conclusions is not challenged on the appeal. [17] That evidence included unchallenged evidence of Crown witnesses, the inspection reports, and a Valleyview employee, all ofwhich was led as part of the Crown's case. Mr. Ambrosi also made admissions in his evidence, but it is clear that those admissions werenot necessary to support the findings of fact reached by the trial judge. [18] The trial judge found that the defendants had not made out their defence of due diligence. He made findings of credibilityagainst Mr. Ambrosi.

I set out below the critical portions of his reasons: [53] My consideration of the due diligence principles must begin with an assessment of Mr. Ambrosi’s evidence. At times when

testifying, Mr. Ambrosi was untruthful. For example, his evidence pertaining to the permit of August 27, 1981. He testified that it was a"phony"; that there is a permit which pre-dates this one and only requires a fireguard; and that he only learned of the permit’s firesuppression requirement about ten years ago. There is no doubt that the permit is legitimate, is the first in time, and that Mr. Ambrosiknew of its contents. Also, Mr. Ambrosi’s evidence that the Fire Department rejected his help, the on-site water supply, and told him toleave, is not true. It is very clear that Mr.

Ambrosi simply fabricated these stories while he was testifying. [54] At other times, Mr. Ambrosi’s evidence was preposterous. For example, that the Fire Department was not sufficientlyexperienced. The evidence clearly discloses that the fire was extinguished in a reasonable period of time considering the material whichwas left exposed. ... [55] Mr. Ambrosi’s treatment of Mr. Marsh was shameful. In an attempt to deflect responsibility for the failure to cover and compact,Mr. Ambrosi tried to lay the blame at the feet of Mr. Marsh. In doing so, he said some very outrageous things about Mr. Marsh and hisfamily.

These complaints were not put to Mr. Marsh in cross-examination, and I give them no weight whatsoever. [56] Throughout the trial I constantly heard from Mr. Ambrosi that he has been the subject of a conspiracy, discriminated against, andthat there have been violations of his rights, as contained in the Charter of Rights and Freedoms, at the hands of almost every level ofgovernment. [57] The only evidence in support of these assertions came from Mr. Ambrosi.

There is not one shred of objective or independentevidence to support such claims and I give his musings on the subjects no consideration. [58] To summarize, for the reasons stated, Mr. Ambrosi’s evidence, but for his admissions against his interests, cannot be relied upon. [59] What is abundantly clear from the manner in which the landfill was being operated, throughout most of the time frame coveredby the Information, is that Mr. Ambrosi, for his own purposes, was running it with inadequate manpower and marginal equipment. [60] Mr.

Ambrosi did assert in his evidence that this was due in part to financial reasons. No documentary evidence was submitted tosupport this position. And for the reasons stated above, I am not prepared to accept Mr. Ambrosi's bald assertion that this played asignificant factor in the operation of the landfill. [61] In

summary, the prohibited acts having been established, and no due diligence being shown, I find Mr. Ambrosi and Valleyviewguilty of Counts 1 and 2. [62] Equally clear is Mr. Ambrosi’s reason for failing to file the annual reports. In his mind, he continues to be singled out by theMinistry (from other landfill operators) and treated unfairly. He does not plan to file any annual reports until he knows that all otherlandfill operators in the Kamloops area filing their reports and he has received a copy. [63] In a recent case, Vancouver (City) v. Piccadilly Investments Ltd., 2010 BCSC 245, reference was made to R. v.

Kurtzman, (1991) (ON CA), 4 O.R. (3rd) 417, where Tarnopolsky, J.A. said, "The due diligence defence must relate to the commissionof the prohibited act, not some broader notion of acting reasonably...”. [64] This statement is applicable to Mr. Ambrosi in his efforts to widen the goal posts and justify the failure to file the annual reports. [65] I do not understand there to be a positive duty on the Ministry to provide Mr.

Ambrosi with the annual reports of other landfilloperators, and that their failure to do so, excuses Valleyview from its positive duty under the terms of the permit to file annual reports.Or to put it another way, Mr.

Ambrosi cannot realistically claim that unless he receives the other landfill operators’ annual reports, thissomehow establishes due diligence. [19] The learned judge then proceeded to find each of the defendants guilty of the offence of failing to file annual reports. [20] Both defendants were acquitted of the charges of failing to maintain adequate firefighting systems on the basis that the Crownhad not discharged its onus to prove the prohibited acts beyond a reasonable doubt. [21] The trial reasons do not explicitly state the basis on which Valleyview, which is stated on the permit to be the holder of thepermit, and Mr.

Ambrosi were both convicted of the offences. [22] At the opening of the trial, the judge asked Crown to explain why Mr. Ambrosi was charged in addition to the permit holder.Crown explained that the answer is found in s. 121 of the EMA. That

section reads as follows: 121(1) If a corporation commits an offence under this Act, an employee, officer, director or agent of the corporation who authorized,permitted or acquiesced in the offence commits the offence whether or not the corporation is convicted. [23] Having reviewed the evidence at trial, and the evidence underlying the findings of fact made by the trial judge aboutMr. Ambrosi’s personal involvement in the subject matter of the charges, it is apparent that Mr. Ambrosi was the directing mind ofValleyview.

He was intimately involved in all of the conduct of the company which formed the subject matter of the charges. It isapparent that the company acted through him and for all practical purposes the actions of the company were the actions of Mr. Ambrosi.In my view, the failure of the trial judge expressly to refer to s. 121 of the EMA in his reasons and expressly to refer to the evidenceestablishing that Mr.

Ambrosi was an officer and director of Valleyview who authorized, permitted, or acquiesced in the conductconstituting the offence has not occasioned a miscarriage of justice and does not provide a ground of appeal in addition to those identifiedby the appellants. Mr. Ambrosi’s authorization, or permission of, or acquiescence in the offences is established in the findings of fact ofthe trial judge. Ground 1: The Charges do not Allege Offences Known to Law and in Wrong

Capacity [24] This ground rests on both a substantive and a procedural basis. The substantive claim is that Valleyview was not carrying onbusiness subject to any current, valid permit issued under the EMA. Further, only Valleyview is the purported holder of a permit.Mr. Ambrosi is not the permit holder. He could not be charged as a permit holder and there was no basis to charge him personally. Onprocedural grounds, the information charging him was defective since it alleged that he was a permit holder. These arguments are said tobe sufficient to support the appeal. [25] I see no merit in these arguments.

First, it is clear that Valleyview is the holder of the permit in issue. That permit was firstissued under previous legislation. The permit has been continued under the transitional provisions of the EMA. [26] Permits were previously issued by decision of a director under the Pollution Control Act. When the Pollution Control Act wasrepealed, the Waste Management Act, S.B.C. 1982, c. 41, replaced it. By virtue of s. 36 of the Waste Management Act, permits grantedunder the Pollution Control Act remained in force and were deemed issued under the Waste Management Act.

Permits under the WasteManagement Act were issued by decision of a manager. [27] When the EMA came in to force, replacing the Waste Management Act, s. 140(2) of the EMA deemed decisions of a managerunder the Waste Management Act to be decisions of a director under the EMA. Permits are issued under the current EMA by way ofdecisions of the director pursuant to s. 14. [28] The effect of the transitional provisions is to carry forward permits issued under the former legislation. The fact that s. 14 ofthe EMA says that the director "may issue" permits does not require old permits to be re-issued.

There is no breach of any principleagainst the retroactive operation of legislation, as alleged, in continuing permits previously issued through the transitional provisions. [29] I conclude, therefore, that the permit alleged to have been breached by Valleyview was a valid permit capable of forming thefoundation of the charge against Valleyview. [30] As I have previously noted, s. 121 of the EMA stipulates that as a matter of law an employee, officer, or director of acorporation who authorizes, permits, or acquiesces in an offence committed by the corporation also commits the offence, whether or notthe corporation is convicted.

As a matter of substance, therefore, Mr. Ambrosi would be personally liable for the offences committed byhis company if, as a director or officer, he authorized, permitted, or acquiesced in them. There is, therefore, no merit in the argument thatMr. Ambrosi cannot be charged or held responsible personally. [31] The counts against Mr. Ambrosi identified him as a holder of a permit and did not identify him as a director, officer, oremployee of Valleyview.

If that constitutes a deficiency or error in the information sufficient to warrant an objection for a defect capableof leading to the quashing of the information, then the objection ought to have been taken before the plea, and only thereafter with leaveof the court. This is the effect of s. 100(1) of the Offence Act, R.S.B.C. 1996, c. 338, and s. 601 of the Criminal Code, R.S.C. 1985, c. C-46, which the Crown argues operates in this case pursuant to s. 133 of the Offence Act. [32] I accept this submission. The basis of the charges against Mr.

Ambrosi was explained to him by the Crown and the court atthe beginning of the trial. Specific reference was made to s. 121 of the EMA. It appears from the transcript that Mr. Ambrosi understoodthe basis of the charges against him personally. He took no objection to them. If there had been any reason to be concerned about thewording of the information, it could readily have been cured at that time. But in the circumstances, I cannot see that any deficiency in thewording of the information has caused any prejudice to Mr.

Ambrosi or has in any way affected the fairness of his trial. [33] I dismiss the first ground of appeal. Grounds 2 and 3: The Trial Judge’s Conduct of the Trial [34] I intend to deal with the second and third grounds of appeal together since they both raise questions about the fairness of thetrial and, in particular, whether the trial judge properly discharged his responsibility in the conduct of the trial given that the defendantswere self represented. [35] It is clear that a trial judge has a duty to assist an unrepresented accused to ensure a fair trial.

A clear statement of thegoverning principle is found in R. v. Moghaddam, 2006 BCCA 136, where the following was said at paras. 35, 36 and 40: [35] The issues considered by the

summary conviction appeal judge (set out in para. 4 above) focused on whether the trial judge hadassisted the appellant in the procedural aspects of the trial. She commenced her judgment by citing R. v. B.K.S., [1998] B.C.J. No. 507(C.A.) (Q.L.) and R. v. Parton, [1994] B.C.J. No. 2098 (S.C.) (Q.L.) for the principles that govern the duty of a trial judge in assisting anunrepresented accused to ensure a fair trial and for the types of assistance a trial judge should offer. In B.K.S., Cumming J.A. for theCourt stated (at para. 26): A trial judge has an obligation to ensure that an accused receives a fair trial.

When faced with an unrepresented accused the trial judgeshould, within reason, assist the accused in the conduct of his defence and guide him through the trial process so that his defence iseffectively brought out. Just how far a trial judge should go in doing so is necessarily a matter of discretion. As in all cases involving thereview of the exercise of judicial discretion, an appellate court should only intervene if the judge proceeded on a wrong principle or if amiscarriage of justice resulted. See R. v. McGibbon (1988), (ON CA), 45 C.C.C. (3d) 334 (Ont.

C.A.) and R. v.Carosella, (SCC), [1997] 1 S.C.R. 80, 112 C.C.C. (3d) 289. [Underlining added by Levine J.A.] [36] In Parton, Ryan J. (as she then was) summarized the principles (at para. 16):

… the case law appears to require the trial judge to provide assistance to an unrepresented accused with respect to the applicable procedural law in each case. The trial judge must, in addition, try to ensure that the accused’s defence is brought out in full force and effect . [Underlining added by Levine J.A.] ... [40] In Parton , Ryan J. described the difficulties an unrepresented litigant presents to a trial judge (at paras. 5-7): One of the most difficult situations a trial judge must face is the case of an unrepresented accused. Mastering the substance and procedure of criminal law takes many years.

A lay person, no matter how intelligent or well-motivated, generally comes to the courtroom unequipped to conduct a trial. In some cases the person accused cannot afford the services of a lawyer. In other cases the person accused prefers to conduct his-or-her own defence. Occasionally the accused is adequately informed but usually the person does not have even the most rudimentary understanding of such things as the charge he-or-she faces, the burden on the Crown, or the role of the defence.

Unfortunately it is not uncommon for the accused to have derived his-or-her notions about the legal system from unrealistic television or movie portrayals. As a result there is often much time expended by an unrepresented accused in a trial investigating clear irrelevancies. Trials conducted by a lay litigant can be much longer than those where counsel is present. This creates more pressure on crowded court dockets and cannot but try the most patient of judges . [Underlining added by Levine J.A.] [ 36 ] Mr.

Ambrosi alleges that he did not receive a fair trial and that a miscarriage of justice occurred because the trial judge did not provide the assistance to him he was duty bound to give and, in particular, failed to advise him of his right to remain silent and not incriminate himself; permitted improper cross-examination of Mr.

Ambrosi; permitted Crown to lead his own witnesses on direct examination; failed to bring out defences including conspiracy, abuse of process, and want of grounds to lay the charges; and wrongly failed to appoint counsel or advise the appellants of their constitutional right to counsel once the judge recognized that Mr. Ambrosi was incapable of conducting the trial on his own behalf. Mr.

Ambrosi points out that he was 75 years old at the time of the trial, is hearing impaired, has only a grade 7 education, and, as is evident from the transcript, did not understand either the process or the substance of the trial or the charges. [ 37 ] It is clear that the way in which a trial judge assists a self represented party is a matter of discretion. As an appeal court, the standard of review is that I should intervene only if the trial judge proceeded on a wrong principle or if a miscarriage of justice resulted.

To assess this question, it is necessary to have regard to the nature of the charges and/or the circumstances bearing on the conduct of the trial. Having reviewed the entirety of the transcript, I am unable to conclude either that the trial judge proceeded on a wrong principle or that a miscarriage of justice resulted. [ 38 ] In my view, the trial judge patiently attempted to ensure that Mr.

Ambrosi understood the charges that he and his company faced, the law that was applicable to those charges, the nature of evidence relevant to them, and the process by which evidence could be received and examination and cross-examination conducted. It is apparent that Mr. Ambrosi wanted to expand the issues in the trial beyond those relevant to the charges. The trial judge was faced with a difficult challenge in attempting to keep the trial properly focused on relevant matters. The trial judge gave Mr. Ambrosi considerable latitude to air grievances and raise issues that were not legally relevant to the charges.

Importantly, the trial judge made a considerable effort to bring out evidence that was relevant to whether the Crown had discharged its burden to prove the prohibited acts and whether a basis for a due diligence defence existed. [ 39 ] In viewing the trial as a whole, it should not be forgotten that the Crown proved the prohibited acts of failing to cover the landfill and failing to file annual reports beyond a reasonable doubt based on evidence led as part of its case. The outcome of the case in respect of those matters did not depend on self incriminatory evidence or admissions made by Mr. Ambrosi.

Having proven those acts, the onus shifted to the defendants to prove a due diligence defence on a balance of probabilities. It is not apparent how the defendants could have discharged that onus without giving evidence. I cannot see any error in the way the trial judge dealt with Mr. Ambrosi giving evidence. This is not a criminal proceeding. In the circumstances, it is not a fair or plausible suggestion to say that Mr. Ambrosi should have been advised that he had a right not to incriminate himself and a right to remain silent.

The only prospect of making out a defence required him to testify. [ 40 ] It is also clear that the trial judge made a considerable effort during Mr. Ambrosi’s direct evidence to question him to ensure that any potentially relevant evidence bearing on the due diligence defences was elicited. Indeed, on a fair reading of the transcripts, the evidence brought out with the assistance of the trial judge laid the foundation for the acquittals on the charges of failing to maintain adequate on-site firefighting systems.

It is apparent that the trial judge went to such great lengths to draw out the evidence relevant to the available defences because he recognized that Mr. Ambrosi might be unable to do so unless assisted. It is also apparent that there were no legitimate defences available to those charges on which the appellants were convicted.

In my view, the trial judge did all he reasonably could to provide a fair trial in the face of a self represented party determined to inject into the trial a mass of irrelevancy. [ 41 ] I turn now to deal with some of the more particular matters raised by the appeal. [ 42 ] At the beginning of the trial, the trial judge explained the nature of the charges to Mr. Ambrosi; the basis on which he was charged personally, including reference to s. 121 of the EMA ; and the basic trial process, including the right to cross-examine the Crown witnesses.

He explained that the charges were strict liability regulatory and not criminal offences. He pointed out that once the Crown established the factual basis of each offence, the onus then shifts to the defendants to establish on the balance of probabilities a reasonable excuse.

He explained the nature of the burden of proof on the Crown and the fact that at the end of the Crown's case he would explain the options available to the defence, although he outlined those options in general terms at that time. [ 43 ] During the trial, the trial judge gave the leading authority on strict liability offences to the defendants. On more than one occasion he reiterated his explanation of the nature of the offence, the burden on the Crown, the shifting burden to prove a due diligence

defence, and the nature of the evidence relevant to the charges. The trial judge also drew Mr. Ambrosi’s attention to the specific wording of the information and the material portions of the counts. He patiently attempted to explain what was relevant to the issues before the court and to keep Mr. Ambrosi focused on relevant and probative matters. [ 44 ] As the trial unfolded, it became apparent that Mr. Ambrosi had difficulty in understanding how to conduct a cross- examination. The trial judge repeatedly told Mr.

Ambrosi that cross-examination was not his opportunity to give evidence, to state his positions, or to make speeches. He directed him to ask questions. He gave considerable latitude to Mr. Ambrosi to launch into lines of inquiry regarding suggestions of conspiracy involving virtually all aspects of government. Having said that, the trial judge did on a number of occasions cut off cross-examination on the basis of relevancy. Repeatedly, he asked Mr. Ambrosi to explain how the matters he was raising were relevant to the charges or the defence of them.

The trial judge went to considerable lengths to explain what was relevant and why the issues being raised by Mr. Ambrosi were irrelevant. [ 45 ] Those issues involved a wide range of matters including the history of Mr.

Ambrosi’s involvement with the government, the regulator, and the City of Kamloops over decades; allegations of conspiracy; complaints about being treated differently to other landfill operators; costs imposed upon the operation of his landfill; other unrelated litigation; the nature of democracy; the Charter ; the City of Kamloops’ failure to provide adequate public services to his operation; the alleged incompetency of the firefighters; and the suggestion that one of the officers involved in the investigation attempted to deposit the carcass of a bear at his landfill. [ 46 ] It might be noted, that Mr.

Ambrosi admitted that he had not provided the cover of the landfill as required by the permit and was emphatic that he would not file annual reports until he had been provided with annual reports filed by other landfill operators. Subject to a due diligence defence, he admitted the basic elements of the charges. [ 47 ] On occasion, the trial judge stepped in to monitor the relevance of the evidence being led by the Crown and clarify the purpose for which it was being used. He then explained that purpose to Mr. Ambrosi.

I cannot find that any miscarriage of justice occurred in what evidence the trial judge permitted the Crown to call or the questions Crown was permitted to ask. [ 48 ] In my view, the appellants have not demonstrated any error of principle or miscarriage of justice in the manner in which the trial judge controlled the trial process. The charges were straightforward allegations of breaches of the permit to operate the landfill. The offences alleged were specific; they were failing adequately to cover the landfill, failing to provide adequate firefighting equipment, and failing to file annual returns.

There was no practical controversy that the landfill had not been covered as required by the permit or that the annual reports had not been filed. The defence of due diligence had to relate to those specific factual matters. The history of Mr. Ambrosi’s complaints about the regulatory authorities, the City of Kamloops, other governmental entities, and his competitors in the landfill business were not relevant defences to these charges. The trial judge had an obligation to ensure that the trial remained focused on relevant issues. He gave latitude to Mr.

Ambrosi to pursue collateral issues before cutting him off and bringing the trial back into focus. He made no error in so doing. [ 49 ] The appellants direct a number of specific criticisms against the judge. They complain that the trial judge, having recognized that Mr. Ambrosi did not properly understand the nature of the charges and could not conduct a defence based on them, ought to have advised Mr.

Ambrosi of his constitutional right to counsel, adjourned the case, and compelled the appellant to seek legal advice, provided names of counsel who could offer reasonably priced assistance, or compelled duty counsel to give free advice. In any event, having recognized Mr. Ambrosi's problem, the trial judge ought not to have proceeded with the trial until proper legal advice had been given and representation obtained. [ 50 ] I reject this submission. On the second day of the trial, the trial judge raised a concern about the trial being derailed by the issues being raised by Mr. Ambrosi.

The catalyst giving rise to this issue was questions Mr. Ambrosi was asking in support of certain political claims and the suggestion of perjury associated with the charges. The trial judge observed that he had serious reservations about Mr. Ambrosi’s ability to defend himself and recommended that he speak to a lawyer. In the colloquy that followed Mr. Ambrosi raised issues about the availability of counsel to him and their cost. The trial judge explained yet again the nature of the charges and drew his attention to underlined portions of the information.

The judge repeated his advice that he should have a lawyer; told Mr. Ambrosi that it was his “call”; told him that if he was not going to hire a lawyer, that it would be necessary to focus on what is relevant and probative to the charges; and offered Mr. Ambrosi an adjournment to consult counsel. He then accepted Mr. Ambrosi’s decision that he did not want an adjournment and did not want to hire a lawyer to represent him. Mr. Ambrosi asserted that he did not have the money to retain counsel.

The trial then proceeded. [ 51 ] I do not think that the way in which the trial judge handled this issue demonstrates that he erred in principle or acted in a way that led to a miscarriage of justice. There may be circumstances in which it is appropriate for a judge to halt proceedings to consider whether it is necessary to appoint amicus curiae to assist in the conduct of the case or to give the opportunity for an application to be brought for public funding of counsel. Those cases would typically involve serious criminal charges leading to a realistic prospect of incarceration on conviction.

This is not such a case. These were regulatory offences with no material prospect of incarceration on conviction. I know of no authority, in the circumstances applicable here, that would have permitted the trial judge to appoint counsel or compel duty counsel to give advice, or required the judge to provide a list of names of counsel or compel Mr. Ambrosi to seek advice. [ 52 ] The trial judge recommended that Mr. Ambrosi seek legal advice. He offered an adjournment of the trial to allow him to do so. He did not need to go further and refer to a purported constitutional right to counsel. Mr.

Ambrosi was given an opportunity to consult counsel, but did not take it. I do not think that the trial judge can be expected to have done more in the circumstances. [ 53 ] Next, the appellants allege that the trial judge stifled their ability to advance available defences. It is by no means apparent to me how this argument is consistent with the premise of the previous argument. That argument turned on the ground that Mr. Ambrosi had demonstrated through the issues that he was attempting to raise that he did not understand the nature of the charges and the available defences.

This ground of appeal presupposes that those issues support valid defences. [ 54 ] The defences the appellants allege were stifled by the trial judge "centered upon the charges being part of a larger conspiracy amongst Ministry staff to push them out of business due inter alia to political considerations, [a.k.a.] an abuse of process, (including a

previous prosecution of the ‘gypsum’ case), Permit deficiencies which Ministry officials are alleged to have breached, the lack of reasonable and probable grounds to lay the Information by the Informant, and Charter relief". [ 55 ] To cast this argument in the terms most favourable to the appellants, it amounts to the claim that there was a miscarriage of justice because the appellants were prevented from attacking the charges on the basis that they were an abuse of process.

It should not be forgotten that in the context of the trial itself, these matters were raised primarily as defences, not expressly as giving rise to an abuse of process although that possible argument may arise out of the factual claims advanced and the trial judge recognised that possibility. Equally, it should not be forgotten that abuse of process is not a defence to the substantive charges.

It is a remedy available to the court to stay proceedings in the clearest of cases in order to protect the integrity of the judicial process and the principles of fundamental justice ensuring that an accused has a fair trial. [ 56 ] During the trial, the trial judge repeatedly asked Mr. Ambrosi to explain the relevance of the issues to the charges before the court. He also sought the assistance of Crown on that issue. It is clear that these issues do not directly ground defences. The trial judge proceeded on that basis.

On the fourth day of trial, the trial judge raised with Crown the question of the relevance of the allegations of conspiracy and that the Ministry was “out to get” Mr. Ambrosi. Crown responded that the allegations were not relevant to the charges as defences. The charges were supported by evidence. Crown suggested that the complaints being raised might form the foundation of civil lawsuits. He also acknowledged that he supposed that the allegations could give rise to some sort of abuse of process. [ 57 ] Crown took the position that there was no evidence of any abuse of process. The court observed that Mr.

Ambrosi was attempting to introduce an exhibit brief from other court proceedings that allegedly contained evidence of an abuse of process. Crown indicated that he did not have any difficulty with the court reviewing that binder to determine whether it contained any evidence of abuse of process. [ 58 ] The court offered Mr. Ambrosi the opportunity to submit any documents in the binder which he thought supported the allegation of an abuse of process. Mr. Ambrosi declined the offer and referred to additional documents he had at home.

I set out the exchange in full: THE COURT: Now where we left off before the break was we were discussing this suggestion of yours that there might be some form of an abuse of process or, as you say, a conspiracy. All right. Now, if you’ve had an opportunity to review those documents, I will entertain the -- the documents which are relevant to that issue being tendered as evidence in this trial, okay, but I am not prepared just simply to have those two booklets stamped the next numbered exhibits. So that’s where we’re at. How do you want to proceed? THE ACCUSED: Well, I never pull them specifically out of here.

I mean, there are, you know, areas in there, this is why I presented it as a complete booklet and you disregard anything that isn’t -- THE COURT: I am not prepared to do that, as I said earlier, okay. THE ACCUSED: They all -- they all relate to conspiracy, whether from the Minister or -- THE COURT: I don’t want to hear what your submission is. I want you, if you -- if that’s how you want to handle this, you take from each of those booklets the documents which you think allege a conspiracy, which is relevant to these three groups of charges before me today.

THE ACCUSED: No, these -- I am not prepared to go that route on there because, as I say, this -- this is over a decade of 50 -- or 40 [year] period of time that these -- collection of these various transgressions were there. I’ve got more at home, but I mean that’s all that is in here, and I’d have to go over them again to try to see how they relate to those specific charges there. THE COURT: All right. But this has obviously been a longstanding issue; you should have come to court prepared for this then. THE ACCUSED: Well, as I say, I’m not -- not a lawyer. I don’t know the first thing about court.

This is the first time I’ve talked to a judge in a court. I’ve always been in the back or reading about it in the paper or have my legal people telling me what transpired. THE COURT: Well, if you don’t want to proceed on that basis, then we’ll move onto the next -- THE ACCUSED: yeah, that’s what I say -- THE COURT: -- aspect of the case. THE ACCUSED: -- we might as well move on and that’s about all that I think [indiscernible] and we go ahead with the Crown’s what he’s going to provide -- [ 59 ] The trial judge has the obligation to control the trial process.

It was well within the proper exercise of his discretion to provide Mr. Ambrosi with an opportunity to tender evidence relevant to a question, but to refuse to admit and mark binders containing irrelevant material. Mr. Ambrosi did not take the opportunity he was offered. He cannot complain now and say the trial judge should, nonetheless, have received irrelevant material and marked them as exhibits. [ 60 ] I cannot see that the trial judge made any error in dealing with the abuse of process issue. Abuse of process involves abuses by the state in bringing charges.

The abuse must violate fundamental notions of justice and the integrity of the court. The purpose of the doctrine of abuse of process is to protect the integrity of the court’s process through which justice is administered in the community. [ 61 ] In this case, it was apparent that there was a solid foundation for bringing the charges. There was no evidence capable of supporting an allegation that the Attorney General had participated in any conspiracy in relation to the prosecution of the charges. The “evidence” about the history of difficulties Mr.

Ambrosi claimed to have experienced in dealing with the regulatory authorities did not lay a foundation for the allegation that these charges constituted an abuse of process. They merely described his perception that the

regulators had been unfair to him, had treated him differently from other operators, and that the City of Kamloops wanted to put him out of business and had not provided him with services he required. These were general allegations, “musings” as the trial judge called them, unsupported by any objective evidence. They laid no foundation for a legitimate argument that these particular charges were an abuse of process. The trial judge referred to these allegations in his reasons. I see no error in the comments he made about them. [ 62 ] The trial judge had in fact given Mr.

Ambrosi considerable latitude to raise the general issues of conspiracy, although he cut those lines of inquiry off when it became apparent that they did not support a defence to the charges. The trial judge also gave Mr. Ambrosi the opportunity to provide evidence that these charges were in fact an abuse of process. Mr. Ambrosi declined to take up that opportunity. I do not think it can be said that the trial judge proceeded on an incorrect principle or that a miscarriage of justice occurred. Ground 4: The Informant, Mr.

Dahl, did not Possess Reasonable and Probable Grounds to Lay the Charges [ 63 ] The appellants argue that they were denied a fair trial because they were prevented from challenging the information on the ground that it was not properly laid. They submit that the informant, Mr. Dahl, did not have reasonable and probable grounds to lay the information. Accordingly, they argue the charges are a nullity.

They argue they should have been permitted to cross-examine on this issue, but were denied this right by the trial judge. [ 64 ] Properly, this issue should have been raised on a motion before a plea was entered and only with leave of the court afterwards.

Section 601 of the Criminal Code reads: Amending defective indictment or count 601.

(1) An objection to an indictment preferred under this Part or to a count in an indictment, for a defect apparent on its face, shall be taken by motion to quash the indictment or count before the accused enters a plea , and, after the accused has entered a plea, only by leave of the court before which the proceedings take place. The court before which an objection is taken under this

section may, if it considers it necessary, order the indictment or count to be amended to cure the defect. [Emphasis added.] Similar wording can be found in s. 100(1) of the Offence Act . [ 65 ] The appellants argue that Mr. Ambrosi would not have been aware that he was required to bring a motion to challenge the information during trial. The trial judge should have brought this to his attention when it became clear through his cross-examination that he was attempting to challenge the informant’s knowledge of reasonable and probable grounds to lay the charge.

They claim that instead, the trial judge halted this line of questioning and advised Mr. Ambrosi it was irrelevant to the charges before the court. As a result, they were denied their right to fully cross-examine on this issue. [ 66 ] A reading of the portions of the transcripts cited by the appellants in support of their argument suggests that the questions asked by Mr. Ambrosi to Mr. Rhebergen on cross-examination were in support of his allegations that government officials were conspiring against him.

It is far from obvious, in my view, that these questions were intended to raise the issue of whether or not Mr. Dahl had reasonable and probable grounds to lay the information. Moreover, Mr. Ambrosi did not put any questions to Mr. Dahl directly regarding his knowledge of reasonable and probable grounds, despite him giving evidence. Nor can any of the questions he did put to Mr. Dahl be construed to be questioning the proper laying of the information. I can see little, if anything, in the evidence that lays any foundation to support the view that there could be a basis for alleging that Mr.

Dahl did not have reasonable and probable grounds to lay the information. [ 67 ] The trial judge cannot be faulted for failing to recognize, if he failed to do so, that the questions posed by Mr. Ambrosi might go to the validity of the information. It was not obvious from his questioning that this was the issue being raised. A judge cannot be expected to recognize every possible position a self represented party might have available. This is neither realistic nor practical. It is also apparent that these charges had been the subject of pre-trial case management by the trial judge. Mr.

Ambrosi had the opportunity to raise any concerns about the laying of the charges in a timely fashion. [ 68 ] In any event, in my view, the transcripts of the trial do not support the conclusion that Mr. Ambrosi was attempting to raise an issue with the information at trial. The issue is being raised by the appellants on appeal as an afterthought, it appears. [ 69 ] I cannot conclude that any miscarriage of justice has occurred by the trial judge failing to bring this legal position to Mr. Ambrosi’s notice or by cutting off his cross-examination on the ground of irrelevancy.

Ground 5: Ministry Officials were Estopped from Laying the Charges, due to their Failure to Notice the Appellants of any Alleged Failure to Comply with its Permit, Representing to the Appellants that the Ministry was not Enforcing Specific Permit Obligations upon the Appellants [ 70 ] There is no merit to this ground of appeal. The evidence is clear that the regulators had inspected the landfill, noted deficiencies, and made efforts to have the appellants comply with their obligations under the permit.

There is nothing to suggest that the regulators ever represented that they would not enforce the terms of the permit or prosecute breaches. Any previous failure to prosecute breaches of the permit does not raise an estoppel to prosecute breaches or constitute a representation that any particular breaches will not be prosecuted. In any event, as the Crown points out, offences under the legislation are not prosecuted by the Ministry, but independently by the Attorney General.

Ground 6: The Trial Judge was Without Statutory Jurisdiction to Impose the Fine Order of $31,394.11 for Fire Suppression Costs [ 71 ] The only aspect of the sentence that is appealed is the order requiring payment of $31,394.11, in respect of the cost of fighting the fire. This order was made pursuant to s. 127(1)(

i) of the Act. Those monies represented the extraordinary costs incurred by the City of Kamloops to fight the fire. The costs represent overtime wages and firefighting foam costs. Evidence of those costs was provided to the court in the form of a letter. [ 72 ] No objection was taken to those facts being put before the court in that way at the sentencing, although now the appellants allege the judge erred in relying on that letter. It is, of course, standard practice to deal with facts relevant to sentencing through hearsay or statements of counsel, unless objection is taken and formal proof is required.

Crown and the trial judge followed everyday practice in dealing with this question and many others on the sentencing. Any objection to this letter should have been taken at the time. It is too late, in my view, to raise the issue now. There is nothing to suggest that the facts stated in that letter were wrong.

On my review of the record, the complaint that was raised about the letter had to do with its failure to break down the elements of the total cost, not the accuracy of the total. [ 73 ] The trial judge agreed with the defendants that he did not have jurisdiction to order this sum to be repaid as restitution pursuant to s. 127(1) (

c) of the EMA , because the City of Kamloops does not fall within the definition of "government", as that word is defined in the EMA . He concluded however that s. 127(1) (

i) did give him the jurisdiction to make such an order if he considered it appropriate to secure the defendant's good conduct and to prevent a repetition of the offence. He concluded that that purpose was also supported by the need to stress general deterrence and to make reparations to the local community. [ 74 ] Section 127(1)(

i) reads: 127(1) If a person is convicted of an offence under the Act, in addition to any punishment imposed, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order containing one or more of the following prohibitions, directions or requirements: ... (

i) requiring the person to comply with any other conditions that the court considers appropriate for securing the person's good conduct and for preventing the person from repeating the offence or committing other offences under this Act. [ 75 ] I cannot conclude that the trial judge erred in making a restitution order under this section. The trial judge considered such an order to be essential to securing good conduct and preventing a repetition of the offence. Nothing in the wording of the

section prevents a monetary order being used to produce that result. It appears that the judge regarded the requirement to pay these incremental costs occasioned by the commission of the offence as providing an incentive to ensure that Mr. Ambrosi would conduct himself properly in the future and not commit the offence again. I do not think the reference to general deterrence is the basis upon which the order was made.

The comments of the judge simply indicate that he regarded such an order as being consistent with that principle. [ 76 ] In the circumstances, the trial judge did not err in relying on the letter setting out the additional costs incurred in fighting the fire. [ 77 ] I am satisfied that no error has been shown in this aspect of the sentencing.

Ground 7: Alternatively, the Trial Judge Erred in Relying upon a Different Provision of the EMA to Impose this Fine not Relied upon by the Crown nor the Appellants and Failing to Permit the Appellants to make Representations on this New Issue [ 78 ] The trial judge's reasons indicate that the Crown did rely on s. 127(1) (

i) in support of its position. The transcript discloses that the argument was advanced by the Crown on November 26, 2010. The sentencing hearings were adjourned that day to a later date to allow Mr. Ambrosi time to prepare further material on the sentencing. Contrary to the position of the appellants, Mr. Ambrosi had the opportunity to deal with that submission even if he may not have recognised the need to do so. In fact, Mr. Ambrosi did not make any substantive submissions of the applicability of that section. The trial judge did not fail to permit the appellants to make representations on this “new issue”.

He did nothing to prevent them making whatever argument they might have raised. I do not think he can be faulted for failing to take the extra step of requesting submissions on the point. [ 79 ] On this appeal, the Crown does not object to this court considering the appellants’ substantive arguments in respect of the applicability of that section. Accordingly, it submits that no miscarriage of justice can result. I agree. [ 80 ] The appellants complain that there is no nexus between the offences which the appellants were convicted of and this order.

The offences relate to the failure to cover the landfill and the failure to file annual reports. They were acquitted of the charge that they have failed to provide adequate firefighting facilities at the landfill. In any event, they say that the good conduct of the appellants was already assured and that fact is reflected in the sentence. There seemed to be no issue that the appellants were at the time of sentencing complying with the permit in respect of covering the landfill. [ 81 ] Again, I cannot see that the trial judge committed any error in principle in making the restitution order.

The fact that the appellants were complying with the requirements of the permit and displayed remorse is acknowledged in the reasons and was the primary basis upon which the fines which were imposed was substantially below what Crown had requested. However, it is not an error to impose an order intended to secure future good conduct and prevent a repetition of an offence, merely because at the time of

sentencing the accused was no longer in breach. That is an insufficient basis on which to conclude that future compliance is assured. [ 82 ] Moreover, there is a nexus between the offence of failing to cover the landfill and the restitution order. The fire spread faster and further than it would have done if the landfill had been properly covered. [ 83 ] I cannot conclude that any submission that might have been made at the time would have affected the trial judge’s decision. Moreover, the trial judge did not err in relying on this

section in making the restitution order. This ground of appeal is dismissed. Ground 8: Alternatively, the Crown on Behalf of the City of Kamloops, was Estopped from Claiming this Aforementioned Fine Relief, or Minimally in the Quantum Sort and Ordered, Resulting from the City's Failure to Equip the Appellants with Reasonable and Appropriate Water and Fire Protection Services Required Pursuant to the Property Taxes Paid for by the Appellants to the City. The City was the Proximate cause of these Extra Firefighting Costs, not the Appellants [ 84 ] There is no merit to this ground of appeal.

The restitution order reflected the judge's assessment of what was appropriate in light of the offence, its consequences, and what was needed to secure future good conduct and avoid a repetition of the offence. Whether or not the City had provided services it ought to have provided is entirely irrelevant to the exercise of the trial judge's discretion. The trial judge was aware that the failure to cover the landfill had permitted the fire to spread as rapidly and extensively as it did.

Whether the alleged failure to provide better firefighting protection services, even if true, contributed in any way to the spread of the fire, is entirely beside the point. Conclusion [ 85 ] The appeal is dismissed. “Harris J.”