R. v. Dickson (W.A.), 2012 MBCA 2

Citation: R. v. Dickson (W.A.), 2012 MBCA 2 Date: 20120106 Docket: AR 11-30-07666 IN THE COURT OF APPEAL OF MANITOBA B E T W E E N : HER MAJESTY THE QUEEN ) J. M. Waldron ) for the Applicant (Respondent) Respondent ) ) A. S. Littman and ) S. N. De Filippis - and - ) for the Respondent ) ) Chambers motion heard and WADE ANTHONY DICKSON ) Decision pronounced: ) December 8, 2011 (Accused) (Appellant) Applicant ) ) Written reasons: ) January 6, 2012 SCOTT C.J.M. 1 The accused (the applicant) applies for leave to appeal, pursuant to s. 839(1) of the Criminal Code , from the decision of the

summary conviction appeal judge, whereby he was convicted of two of five counts under The Water Rights Act , C.C.S.M., c. W80 (the Act ), for having “constructed illegal drainage works, to wit: Construct, establish or maintain illegal trench” without a valid licence contrary to s. 3(1)(

c) of the Act and did thereby contravene s. 23(1) (

a) of the Act . 2 For the reasons that follow, I would grant leave to appeal with respect to both counts for which the applicant was convicted. 3 The applicant is a farmer who operates his farming business near Killarney, in southwestern Manitoba. The counts that are the subject-matter of this application involved drainage ditches or trenches, referred to throughout the proceedings as T1 and T3, located within his farmlands. 4 At trial, the Provincial Court judge made the following specific findings of fact (at paras. 18, 31): ….

The Crown concedes that there is no evidence that any trenches were constructed or established during the relevant time period set out in the information. ….

There is no evidence that during the time period disclosed in the information the accused actually performed any act that could be construed as maintaining the trenches in question or that anything he did facilitated the drainage of the wetlands. …. 5 Nevertheless, the trial judge found the applicant guilty of maintaining T1 and T3 on the basis that he had knowledge of their existence and did not take reasonable steps to eliminate them. 6 On appeal to the Court of Queen’s Bench, the appeal judge disagreed with the trial judge’s

interpretation. Specifically, he noted (at paras. 24-25): The definition of “maintain” under the Water Rights Act includes “keep in existence”. The Learned Trial Judge interpreted “keep in existence” as the equivalent to “allowing to exist”. …. The charge of maintaining an illegal trench or keeping an illegal trench in existence involves a positive act on behalf of the accused. The mere existence of the illegal trench on the accused’s land is not sufficient to constitute a breach of s. 3(1) (

b) of the Act . There must be some positive act by an accused to maintain the trench or keep the trench in existence.

7 However, the appeal judge went on to affirm the convictions for different reasons (at paras. 26-30): The Learned Trial Judge found that there was no evidence the accused had actually performed any act that could be construed asmaintaining the trenches in question. I cannot agree. Maintenance of a drainage trench can involve many acts including the clearing of vegetation and levelling of the contours of the trench toallow for the free flow of water. The photos filed as exhibits in this cause clearly illustrate that T1 has been worked with heavymachinery.

There was evidence of farm machinery having operated through T1 and the removal of crop. It is of no concern that the primary reason for the work being done is the planting and harvesting of crops. Any work which operates tokeep the trench clear constitutes maintenance of that trench. The working of this trench in the ordinary course of farming would operateto keep it clean and open to drain water. Accordingly, I find that the Crown has proven the allegation of maintaining the trench known as T1 as alleged and the conviction willnot be disturbed.

With respect to Count #3 respecting the trench known as T3, Spears testified this trench was clearly man made. There were straightportions of the trench that could not have been naturally formed. There was no evidence that this trench existed prior to 2008. There isevidence that in 2008 and earlier, Dickson or a corporation controlled by him owned and worked the land in question.

Based on theevidence before the Learned Trial Judge, there was evidence to support a conviction for having constructed or established T3. 8 As summarized by the applicant’s counsel, the conviction before the appeal judge “with respect to T1 was on the basis ofmaintenance, while the conviction with respect to T3 was on the basis of establishing or constructing.” 9 Before me, the applicant argued that the appeal judge disregarded the specific findings of fact made by the trial judge (seepara. 4 above). In so doing, and in the absence of palpable and overriding error by the trial judge, he committed an error in law.

Indeed,with respect to T1, it is argued that there was no testimony to support the reversal. The position of the Crown at trial was that theapplicant was guilty of maintaining the trenches by virtue of his failure to eliminate them. The applicant asserts that there was simply noevidence to suggest that ordinary farming activity could constitute maintenance of T1 or T3, nor was it the position of the Crown. Toput it another way, he says that there was no evidence to support the conclusion that normal farming operations had the effect ofmaintaining T1.

With respect to T3, he argues that this flies in the face of the Crown’s concession that there was no evidence that thetrenches were “constructed or established during the relevant time period set out in the information” and that the only evidence was thatT3 was constructed within two years of the date the information was filed. 10 In its argument, the Crown conceded that “[t]he decision to uphold the former two convictions was based on an assessmentof the evidence which was different from that of the trial judge.” 11 The focus of the Crown’s argument, and the real issue before me, is whether the issues raised concern matters that are ofsufficient importance to the administration of justice or the public at large to warrant leave being granted. 12 It is common ground that there are three criteria for the granting of leave to appeal from a decision of the appeal judge in asummary conviction matter.

These criteria are conveniently summarized by the Crown as follows: • Any ground of appeal must involve a question of law alone. • Even if a question of law does arise, leave should only be granted if the matter raises an arguable case of substance. • The arguable case must be of sufficient importance to merit the attention of the full court. Since the case has already beenreviewed by a judge of the Court of Queen’s Bench, which is the primary appellate court to review such matters, there should be acompelling reason to allow this second level of appeal.

One compelling reason would be that the issue raises matters that are ofsignificance to the administration of justice or the development of the law beyond this case. See R. v. Schalla (K.T.) (2007), 2007 MBCA 104 , 220 Man.R. (2d) 69; 2007 MBCA 104; R. v. Langlois (D.J.) (2008), 2008MBCA 72 , 228 Man.R. (2d) 256; 427 W.A.C. 256; 2008 MBCA 72; R. v. M. (R.W.), 2011 MBCA 74. 13 Of particular assistance for this application was the most recent decision in R. v.

M. (R.W.), 2011 MBCA 74. 14 From the cases referred to above, including the authorities reviewed therein, I would summarize the guiding principles forthe granting of leave to appeal by the Court of Appeal from the decision of an appeal judge on a

summary conviction offence as follows:

(1) Leave to appeal will ordinarily be granted only in exceptional circumstances, which will rarely occur. This is because an appeal tothis court is the third level of court involved in the proceedings (unlike more serious indictable offences). In this regard, the role of aprovincial appellate court is akin to that of the Supreme Court of Canada when dealing with an appeal from a conviction on an indictableoffence. See R. v. Suberu, 2007 ONCA 60 at para. 67, 85 O.R. (3d) 127, aff’d 2009 SCC 33, [2009] 2 S.C.R. 460.

(2) For leave to appeal to be granted, the decision should be one that has a significant impact beyond the facts of the particular case.

(3) It follows then that not all errors in law will merit the granting of leave.

(4) Critically, the question whether there are exceptional or compelling reasons for the granting of leave refers to the significance of the legal issue; the fact that the issue is unusual or rare is not, in and of itself, compelling. See R. v. Paterson , 2009 ONCA 331 at para. 2 (QL).

(5) Notwithstanding, if a clear error in law has been identified, leave may be granted even if the significance of the issue for the administration of justice is not high. 15 In my opinion, counsel for the applicant has identified an issue of significance that deserves the attention of the court; namely, whether the appeal judge was correct to conclude that “[a]ny work which operates to keep the trench clear constitutes maintenance of that trench” (at para. 28), even if the work in question occurs within the ordinary course of farming.

To paraphrase counsel for the applicant, farmers who engage in good farming practices in and about a drain or trench are in “big trouble” if such activity can constitute a criminal offence. The applicant states that working of trenches such as T1 and T3 in the ordinary course of farming will have the effect of keeping them clean and open to drain water. 16 The other issue of importance, which applies to both T1 and T3, is the appeal judge’s substitution of his own view of the facts in apparent contradiction of the specific findings made by the trial judge, without reference to the standard of review.

It is an error of law to make a finding of fact for which there is no supporting evidence (see R. v. J.M.H. , 2011 SCC 45 at para. 25 , 421 N.R. 76). 17 I would therefore grant leave to appeal on the following questions:

(1) Did the appeal judge err in law in concluding that any work which has the effect of keeping a drainage trench clear constitutes maintenance of that trench, and it is no defence that the work is being done in accordance with normal farming practices?

(2) Did the appeal judge also err in law in substituting his own views of the evidence for those of the trial judge? _____________________________ C.J.M.