R. v. Dickson (W.A.), 2013 MBCA 58

Citation: R. v. Dickson (W.A.), 2013 MBCA 58 Date: 20130617 Docket: AR 11-30-07666 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Richard J. Chartier Mr. Justice Marc M. Monnin BETWEEN: HER MAJESTY THE QUEEN ) J. M. Waldron ) for the Appellant (Respondent) Respondent ) ) A. S. Littman and ) S. De Filippis- and - ) for the Respondent ) ) Appeal heard:WADE ANTHONY DICKSON ) May 17, 2012 ) (Accused) (Appellant) Appellant ) Judgment delivered: ) June 17, 2013 On appeal from 2011 MBQB 217 , 2011 MBQB 236, 269 Man.R. (2d) 236 CHARTIER J.A. Introduction and Issue [1] The appellant was charged, pursuant to s. 23(1)(

a) of The Water Rights Act, C.C.S.M., c. W80 (the Act), with twocounts of establishing or maintaining illegal trenches (T1 and T3) without a licence, contrary to s. 3(1)(

c) of the Act. The trial judgeconvicted the appellant and fined him $1,500.00 on each count. He determined that, although there was no evidence that the appellanthad established, constructed or actively maintained the trenches, the fact that the appellant knew about the existence of the trenches anddid nothing to eliminate them was evidence of passive maintenance sufficient to support the convictions. [2] The appellant appealed by way of a

summary conviction appeal. The

summary conviction appeal judge (the appealjudge) determined that passive acts of maintenance were insufficient to support the convictions.

However, he upheld the convictions,determining that evidence that a crop was planted and harvested indicated that one of the trenches (T1) was being actively maintained,and that, because there was no evidence that the other trench (T3) existed when the appellant’s land had previously been inspected bygovernment officials, the only reasonable inference was that he had established or constructed it. [3] The appellant was granted leave to appeal the decision of the appeal judge on the following two questions of law: 1) Did the appeal judge err in law in concluding that any work which has the effect of keeping a drainage trench clearconstitutes maintenance of that trench, and that 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? [4] The Crown conceded at the appeal hearing that the appeal judge erred in law in upholding the convictions on thebasis of facts not supported by the trial record.

There was simply no evidence that the appellant had constructed or established T3during the time alleged in the Information, nor was there evidence that he planted and harvested in T1. [5] As a result of this material misapprehension of the facts, the appeal judge erred in law. [6] The real issue on this appeal is the

interpretation of the word “maintain” in the phrase “maintain any water control

works” in s. 3(1) (

c) of the Act . More specifically, does “maintain” import a passive meaning, an active meaning, or both. The Facts [ 7 ] In 1998, a neighbour complained to the Department of Natural Resources (DNR) that water from the appellant’s land was being drained onto his land. DNR employees attended and determined that the appellant was, in fact, unlawfully draining water from a number of his wetlands. They ordered him to close up the trenches. The appellant was also informed that he had to have a licence, issued in accordance with the provisions of the Act , to drain any water from his land.

The appellant applied for a licence and received Licence No. 99-DR-85, which identified four specific wetlands, numbered #1 to #4. The licence stated that “[w]etland #1 shall not be drained in any way.” [ 8 ] In 2000, a DNR inspection discovered a man-made drainage trench (T1) constructed with respect to wetland #1 and ordered it closed. The appellant complied, but, the following year, it was discovered that wetland #1 had been completely drained by T1.

The appellant was charged, but the charge was stayed in November 2002. [ 9 ] In 2008, the DNR discovered that wetland #1 and wetland #2 had been completely drained with two man-made trenches, respectively T1 and T3. These trenches had not been authorized by Licence No. 99-DR-85. The evidence showed that wetland #1 appeared to have been cultivated and worked through with farm machinery. The Relevant Legislative Provisions [ 10 ] The relevant legislative provisions follow. For reasons that will become apparent later, both the English and French versions are set out.

Section 3(1) reads as follows: Prohibition against use of water 3(1) Except as otherwise provided in this Act or the regulations, no person shall (

a) in any manner whatsoever use or divert water, unless he or she holds a valid and subsisting licence to do so; or (

b) construct, establish, operate or maintain any works, unless he or she holds a valid and subsisting licence to do so; or (

c) control water or construct, establish, operate or maintain any water control works , unless he or she holds a valid and subsisting licence to do so. [emphasis added] Interdiction visant l’utilisation de l’eau 3(1) Sauf disposition contraire de la présente loi ou des règlements, il est interdit, selon le cas :

a) d’utiliser ou de dériver de l’eau, de quelque manière que ce soit, à moins d’être titulaire d’une licence valide et en vigueur;

b) de construire, d’établir, d’exploiter ou d’entretenir des ouvrages, à moins d’être titulaire d’une licence valide et en vigueur;

c) de régulariser l’eau ou de construire, d’exploiter ou d’entretenir des ouvrages de régularisation des eaux , à moins d’être titulaire d’une licence valide et en vigueur. [emphasis added] [ 11 ] The term “water control works” is defined under the Act as follows:

“ water control works” means any dyke, dam, surface or subsurface drain, drainage, improved natural waterway, canal, tunnel, bridge, culvert borehole or contrivance for carrying or conducting water, that (

a) temporarily or permanently alters or may alter the flow or level of water, including but not limited to water in a water body, by any means, including drainage, or (

b) changes or may change the location or direction of flow of water, including but not limited to water in a water body, by any means, including drainage. (« ouvrages de régularisation des eaux ») « ouvrages de régularisation des eaux » Digues, barrages, drains de surface ou souterrains, drainages, cours d’eau naturels améliorés, canaux, tunnels, ponts, buses ou autres dispositifs de drainage servant au transport ou à la régularisation de l’eau et qui :

a) modifient ou peuvent modifier temporairement ou en permanence le cours ou le niveau de l’eau, notamment l’eau d’un plan d’eau, y compris le drainage;

b) changent ou peuvent changer l’emplacement ou la direction de l’écoulement de l’eau, notamment l’eau d’un plan d’eau, par quelque moyen que ce soit, y compris le drainage. ( “ water control works ” ) [ 12 ] The English word “maintain” and its French equivalent “entretenir” are also defined in s. 1 of the Act as follows: “maintain” , in relation to works or water control works, includes keep in existence. (« entretenir ») « entretenir »

En ce qui concerne les ouvrages et les ouvrages de régularisation des eaux, assurer, notamment, le maintien en état. (“maintain”) [ 13 ] Other relevant provisions are: Removal of unauthorized works or water control works 4(1) Where a person is using, diverting or controlling water or has constructed or established or is operating or maintaining any works or water control works in breach of

section 3, the minister may make an order requiring the person, within a period of time stated in the order, (

a) to cease using or diverting the water; or (

b) to remove the works or water control works; or (b.1) to cease controlling the water; or (

c) to repair or reconstruct or alter the works or water control works in a manner stated in the order; as the case may be, and the order shall further state that if the person to whom it is directed fails to comply with the order, an officer or another person authorized by the minister may, without further notice or legal process and at the expense of the person, take or cause to be taken the steps set out in subsection (3). Offence and penalty

23(1) A person who contravenes or fails to comply with (

a) a provision of this Act or the regulations; or (

b) an order made under this Act; or (

c) a condition of a licence or permit issued under this Act; is guilty of an offence and liable on

summary conviction to a fine of not more than $10,000. or to imprisonment for not more than threemonths or both and, where the person is a corporation, to a fine of not more than $25,000. Offence and penalty 23(2) Any person who obstructs, hinders or interferes with an officer or other person exercising a power or performing a duty under thisAct is guilty of an offence and liable to a fine not exceeding $10,000. or to imprisonment for not more than three months or both and,where the person is a corporation, to a fine not exceeding $25,000.

Offence and penalty 23(3) Any person who defaces, alters or removes any survey monument, bench mark or water gauge or other instrument or deviceplaced by a duly authorized person engaged in making surveys or levels in connection with any works or water control works authorizedunder this Act, is guilty of an offence and liable to a fine not exceeding $10,000. or to imprisonment for not more than three months or toboth and, where the person is a corporation, to a fine not exceeding $25,000.

Continuing offence 23(4) Each day’s continuance of any act or default that is an offence under this Act constitutes a separate offence for the purposes ofthis section. Time limit for prosecution 23(5) A prosecution under this Act may not be commenced later than two years after the day the alleged offence was committed. Analysis and Decision [14] The appellant was charged, pursuant to s. 23(1)(

a) of the Act, and convicted of constructing, establishing or maintainingtwo illegal trenches without a licence, contrary to s. 3(1)(

c) of the Act. Given that this is a regulatory offence arising out of publicwelfare legislation, it is important to first review the principles articulated in The Queen v. Sault Ste. Marie, (SCC),[1978] 2 S.C.R. 1299.

a) A Review of Sault Ste. Marie: Do the Principles Still Apply? [15] In Sault Ste. Marie, the Supreme Court of Canada, for the first time, applied the concept of strict liability andintroduced the defence of due diligence with respect to public welfare regulatory offences.

This represented a middle ground in relationto the law then in effect, in which regulatory offences were either prosecuted as mens rea offences, requiring the Crown to prove theaccused’s intent or knowledge beyond a reasonable doubt, or absolute liability offences, in which no defence was open to the accusedonce the Crown had proved that the prohibited act had been committed. [16] In Sault Ste.

Marie, the court concluded that the correct approach to be applied to most public welfare regulatoryoffences is one of strict liability, in which the Crown is relieved of the burden of proving mens rea, but a defence of due diligence,established on a balance of probabilities, will relieve the accused of liability.

Thus, as a strict liability offence, once the Crown hasproved the actus reus of the offence, the burden shifts to the accused to prove, on a balance of probabilities, that he acted with duediligence by taking all reasonable steps to avoid the particular event or that he acted under a reasonable but mistaken belief.

[17] The general principles set out by Dickson J. (as he then was) in Sault Ste. Marie have not only stood the test of time,they have also, essentially, remained intact following a number of challenges under the Canadian Charter of Rights and Freedoms (theCharter). The Supreme Court of Canada, in R. v. Wholesale Travel Group Inc., (SCC), [1991] 3 S.C.R. 154, held thatstrict liability offences for which the accused may be imprisoned do not violate s. 7 of the Charter and that, while the reverse onusimposed on the accused in strict liability offences violates s. 11(

d) of the Charter, it is justified under s. 1. [18] The Supreme Court of Canada also more recently referred to Sault Ste. Marie with respect to strict liability in the caseof Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec inc., 2006 SCC 12, [2006] 1 S.C.R. 420, and unanimously agreed that thebasic principles set out in Sault Ste. Marie were still applicable. LeBel J., for the court, reviewed Sault Ste.

Marie and some of thesubsequent Supreme Court of Canada case law and confirmed the following: 1) due to the difficulties and injustices caused by the dichotomy between mens rea offences and absolute liability offences, Sault Ste.Marie recognized the need for, and existence of, strict liability offences (para. 15); 2) strict liability offences, as defined in Sault Ste.

Marie, are offences in which the Crown is under no obligation to prove mens rea ora lack of due diligence – proof of the prohibited act prima facie imports the offence (para. 15); 3) where an offence is one of strict liability, the accused may avoid liability by proving due diligence on a balance of probabilities –“the accused in fact has both the opportunity to prove due diligence and the burden of doing so” (para. 15); 4) with strict liability offences, an objective standard is applied, such that the conduct of the accused is assessed against that of areasonable person in similar circumstances (para. 15); 5) the due diligence defence is available if the accused reasonably believed in a mistaken set of facts which, if true, would render theact or omission innocent, or if he took all reasonable steps to avoid the particular event (para. 15); 6) public welfare offences are prima facie strict liability offences (para. 16); 7) public welfare offences will fall into the category of a mens rea offence “only if such words as ‘wilfully,’ ‘with intent,’‘knowingly,’ or ‘intentionally’” are used (para. 16); 8) absolute liability offences still exist, but have become the exception, requiring clear proof of legislative intent (para. 17); 9) developments in constitutional law since the Charter have reinforced the legal foundations of the three categories of offences(para. 18); and 10) without abolishing the category of absolute liability offences, cases such as Re B.C.

Motor Vehicle Act, (SCC),[1985] 2 S.C.R. 486, and R. v. Vaillancourt, (SCC), [1987] 2 S.C.R. 636, have determined that the imposition of penalliability for an absolute liability offence would violate s. 7 of the Charter where a conviction would expose an accused to imprisonment(para. 18). [19] After confirming these points, LeBel J. endorsed the approach outlined in Sault Ste. Marie as the manner in which acourt is to determine under which of the three categories a regulatory offence might fall.

When determining whether an offence is one ofstrict or absolute liability, the court should consider the overall regulatory pattern adopted by the legislature, the subject-matter of thelegislation, the importance of the penalty and the precision of the language used. [20] While the Supreme Court of Canada decision in Lévis is a civil law case from Québec, I see no reason why theprinciples and approach relating to Sault Ste. Marie set out therein would not apply to this case. Indeed, Lévis has been followed in othercommon law jurisdictions. See, for example, R. v.

Raham, 2010 ONCA 206 at para. 43, 99 O.R. (3d) 241, and R. v. Ivy Fisheries et al.,2009 NSCA 112 at para. 36, 284 N.S.R. (2d) 151.

b) Is Section 3(1) a Strict Liability Offence? [21] Both the appellant and the Crown submit that the offences in question are strict liability offences, as defined in SaultSte. Marie. I agree. A brief review of the Act demonstrates its public welfare nature, which, prima facie, calls for strict liability offences(see Sault Ste. Marie). [22] The Act proclaims, in s. 2, that all property in, and all rights to the use, diversion or control of, all water in the provinceis vested in the Crown. The legislation then prohibits all persons from certain actions with respect to the use of water in Manitoba (s.3(1)).

Unless they are licensed to do so, a person may not use, divert or control water, nor may a person construct, establish, operate ormaintain works or water control works which divert or may divert water, or alter/change or may alter/change the flow, level, location ordirection of flow of water. [23] Pursuant to the

definitions in the Act, “works” do not have to actually divert water; they just need to be capable of doingso.

Similarly, “water control works” do not have to actually alter or change the flow, level, location or direction of water; they just needto be capable of doing so. [24] Under the scheme of the Act, where someone uses, diverts or controls water, or has constructed or established, or isoperating or maintaining works or water control works without a valid licence, the minister can order the person to cease doing so andmay order the person to remove or otherwise alter the works or water control works (s. 4(1)).

The legislation also gives the minister theability to issue licences for the use, diversion and control of water and for the construction, establishment, operation or maintenance ofworks or water control works (s. 5(1)).

[25] The minister may also cancel and suspend licences for a variety of reasons, including concerns about the protection andmaintenance of aquatic ecosystems (ss. 9.2, 14(1) and 14.1) and for reasons of public interest (s. 19(1)). Furthermore, the minister maymake orders requiring a licensee to make repairs or additions to unsafe works or water control works, or to demolish unsafe works orwater control works that have been constructed, established or maintained (s. 16).

In addition, if a licence expires or is cancelled by theminister, the minister may make an order requiring the person to breach, block, fill, demolish or remove the works or water controlworks (s. 17(1)). Where the person fails to comply, the minister can cause the works or water control works to be removed (s. 17(2)).

Moreover, a person may also be charged for breaching the Act, and the penalty upon conviction may include imprisonment (s. 23). [26] The Act also authorizes officers to enter upon any land without a warrant and inspect the land and any works or watercontrol works that have been maintained or are being constructed there (s. 18(1)).

The Act even authorizes officers to remove or destroynatural obstructions which divert a flow of water, including beaver dams (s. 20). [27] Finally, it should be noted that there are none of the usual indicators of a mens rea offence within the Act, such as“wilfully,” “with intent,” “knowingly” or “intentionally.” [28] These provisions ensure that the province has complete control over the use, diversion and drainage of water inManitoba, including control over all works and water control works that could divert water or could alter/change the flow, level, locationor direction of water in Manitoba, whether those works or water control works are licensed or not. [29] This goal of having complete control over the drainage of water from lands is also made clear from the legislativehistory of the Act.

The Act was amended in 2000, in response to a decision from this court, R. v. Hildebrandt (R.A.) (2000), (MB CA), 145 Man.R. (2d) 77, in which the court held that the Act (as it then read) only applied where someone diverted water tomake use of it, but not where someone diverted water for drainage purposes. In introducing the amendments to clarify that the Actapplied to all possible diversions of water, the Minister of Conservation at the time, the late Honourable Oscar Lathlin, stated: …. Unregulated piecemeal drainage projects can have serious consequences on people, on property and on the infrastructure.

In order toensure such potential damage does not occur, the provincial government must maintain its authority and responsibility for drainage. . . . . . The responsibility of the Province as owner of the water resources means that we cannot abandon even if we wished our role inaddressing the overall and potentially widespread impacts of individual water management decisions. …. ….

The amendments that I am proposing clearly establish provincial authority over drainage and other diversion works, as it wasdetermined to be lacking by the court. …. [Manitoba, Legislative Assembly, Hansard, 37th Leg., 1st Sess., vol. 21A (4 May 2000)] [30] The minister’s concerns over the need to regulate any and all drainage projects in order to protect people, their propertyand the public infrastructure are well understood given this province’s history of flooding. [31] For these reasons, I have concluded that an offence of failing to comply with s. 3(1) is a strict liability offence.

c) Is Knowledge of the Existence of the Trenches Required? [32] In the present case, the appellant argued that someone charged with the offence of illegally maintaining a trench wouldhave to be aware of the existence of the trench in order to be convicted. In other words, can someone maintain something withoutknowing what he was maintaining? This is exactly the issue raised in Sault Ste. Marie, where it was argued that a person could not besaid to be permitting something unless he knew what he was permitting.

In that case, Dickson J. indicated that this argument was anover-simplification and reiterated that, for strict liability offences, proof of “the prohibited act prima facie imports the offence” (at p.1326). [33] With strict liability offences, the Crown is relieved of the burden of proving mens rea, but a defence of due diligence,established on a balance of probabilities, will relieve the accused of liability.

Thus, for strict liability offences, once the Crown hasproved the actus reus or the prohibited act, the burden shifts to the accused to prove, on a balance of probabilities, that he acted with duediligence or acted under a reasonable but mistaken belief. [34] In the case at bar, the Crown would only need to prove the prohibited act – that an illegal trench was being maintained. The Crown would not be required to prove that the appellant knew that the trench existed.

However, it would be open to the appellant toavoid liability by establishing, on a balance of probabilities, that he reasonably did not know that the trench existed.

d) Does Section 3(1)(

c) Require Proof of Active Maintenance?

[35] The principal issue on this appeal is whether the Crown proved the prohibited act, being that an illegal trench wasbeing maintained. More to the point, does “maintain” under s. 3(1)(

c) of the Act import a passive meaning, an active meaning, or both? [36] The appellant argues that the prohibited act or actus reus of the offence requires proof of active maintenance of thetrenches, while the Crown argues that keeping them in existence without active maintenance establishes the actus reus. Both parties alsoargue that the English and French versions of the

definitions of “maintain” and “entretenir” support their argument. In accordance with s.23 of the Manitoba Act, 1870, the English and French versions of all Acts and regulations in Manitoba have equal authority. See also, s.7 of The

Interpretation Act, C.C.S.M., c. I80, which reads: Bilingual versions 7 The English and French versions of Acts and regulations are equally authoritative, in accordance with

section 23 of the ManitobaAct, 1870. [37] The two fundamental rules of

interpretation applying to bilingual legislation are described in The Honourable Mr.Justice Michel Bastarache et al., The Law of Bilingual

Interpretation (Markham: LexisNexis Canada Inc., 2008), as follows (at p. 15): The bilingual model is based upon two fundamental principles, which we will discuss in this section. The first principle is the EqualAuthenticity Rule. According to this rule, both the English and French versions of a statute are equally authentic statements oflegislative intent, and neither one is supreme or paramount over the other. The second principle is the Shared Meaning Rule.

This ruleprovides, in short, that both versions of the statute are expressions of the same legislative intent and that courts interpreting statutesshould, as far as possible, attempt to ascertain that intent through a determination of the shared or common meaning of the two versions. [38] Thus, under the first principle, the Equal Authenticity Rule, neither the French nor the English version of

an Act can begiven paramountcy. On this point, Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis Canada Inc.,2008), states (at p. 96): The most important implication of the equal authenticity rule is that neither version of bilingual legislation can be assigned paramountcyover the other. Any rule of

interpretation that purports to resolve conflicts or discrepancies between the two versions by giving priorityto one of the languages is inconsistent with the rule. [39] The second fundamental principle, the Shared Meaning Rule, is described by Bastarache et al. as follows (at p. 32): In interpreting bilingual legislation, the goal is to seek out the shared meaning between the two versions; this meaning has a prima faciestatus as the correct

interpretation of the provision. However, the shared meaning is not decisive and can be abandoned in the face ofclear signals that the intention of the legislator was other than that suggested by the shared meaning. Moreover, if there is no sharedmeaning discernible, normal techniques of

interpretation should be employed. [40] As a result, the

interpretation of bilingual legislation consists of a search for the

interpretation of the provision that mostreadily conforms to the axiom that legislative provisions state only one law, but state it in two languages. Due to the fundamentalprinciples of bilingual statutory

interpretation, “both versions of a statute must be read together to assess Parliament’s intention” (R. v.Lewis, (SCC), [1996] 1 S.C.R. 921 at para. 72). When attempting to determine the common legislative intention, thefirst step will be to ascertain whether there is discordance between the English and French versions of the provision. If there isdiscordance, then the court must determine what type of discrepancy exists and then apply the case law to arrive at a shared meaning.

The second step will require consideration of whether the shared meaning is consistent with the legislator’s intent. [41] To determine whether there is discordance between the two versions, it is first necessary to determine what the plain orordinary meaning of each version is, as established in each language.

Once the ordinary meaning of each version is established, the twoversions may then be compared. [42] The English definition of “maintain” in the Act reads as follows: “‘maintain’, in relation to … water control works,includes keep in existence.” As the English definition of the word “maintain” uses the verb “includes,” it is clearly an inclusive and non-exhaustive definition.

Therefore, the meaning of “maintain” in the Act will include “keep in existence” as well as any other ordinarymeanings of the word “maintain.” [43] Dealing firstly with the phrase “keep in existence,” this phrase, in English, strongly suggests the passive meaning of theword “maintain.” Essentially, the phrase “keep in existence” implies that nothing necessarily needs to be done to maintain the existenceof the thing in question. However, because of the use of the word “includes” in the definition, other ordinary meanings of the word“maintain” should also be considered.

They suggest that, in ordinary usage, the word “maintain” can incorporate both an active and a

passive meaning (see Webster’s New Encyclopedic Dictionary (New York: Black Dog & Leventhal Publishers Inc., 1993) and The Shorter Oxford English Dictionary , 2d ed. (London: Oxford University Press, 1936) vol. 1). [ 44 ] Both meanings of the word “maintain” also align with the broader legislative provision. As noted above, s. 3(1) (

c) prohibits anyone from maintaining “water control works” without a licence. “Water control works” include dykes, dams, drains or canals which alter/change or may alter/change the flow, level, location or direction of water. With respect to drains or canals, it may be that some active maintenance, in the sense of keeping these structures clear of debris, could be required in order that they continue to function properly. However, active maintenance may not, in fact, be required for their proper functioning or their continued existence.

With respect to a dyke or a dam, once it has come into existence, it is even less clear that ongoing active maintenance would be required in order to keep it in existence and to keep it functioning. [ 45 ] With respect to the French version of the Act , the definition of the word “entretenir” reads as follows: “ « entretenir »

En ce qui concerne … les ouvrages de régularisation des eaux, assurer, notamment, le maintien en état.” This definition uses the adverb “notamment,” which connotes inclusiveness and suggests that the item noted is but one particular example, amongst others, which is being singled out (see Marie-Éva de Villers, Multidictionnaire de la langue française , 4e éd. (Montréal: Éditions Québec Amérique Inc., 2003).

The word “notamment” thus corresponds to the English word “includes” or might better signify “notably includes.” It is, therefore, my view that the French definition, like the English definition, is an inclusive and non-exhaustive definition. [ 46 ] Being inclusive, the meaning of “entretenir” in the Act will include “assurer … le maintien en état” as well as any other ordinary meanings of the word “entretenir.” The phrase “assurer … le maintien en état” firstly needs to be considered. The word “assurer” is quite nuanced, and dictionaries give multiple

definitions. Suffice it to say that the English equivalent would be “to ensure that something happens, functions, or continues” (see Le Nouveau Petit Robert (2007) and Multidictionnaire de la langue française ).

The phrase “le maintien en état” is also somewhat nuanced, but may be roughly translated to mean “the preservation or keeping (of something) in the same state or condition” (again see Le Nouveau Petit Robert and Multidictionnaire de la langue française ). [ 47 ] The appellant contends that the use of the word “assurer” in the French definition means that someone would have to take some positive action in order to “ensure” or “see to it” that something happens, functions or continues. In my view, this is not necessarily so.

Some positive action would likely be required to ensure that something “happens” or “functions”; however, positive action is not necessarily required to ensure or see to it that something “continues.” [ 48 ] Furthermore, the use of the word “assurer” in conjunction with the phrase “le maintien en état” suggests both a passive and active meaning. To “ensure” or “see to” the continuation or preservation or keeping of something in its present condition does not necessarily lead to the conclusion that a person must actively do something.

As stated earlier, when discussing the word “maintain,” a person could passively ensure the continuation or preservation or keeping of something in its present condition by doing nothing at all. Furthermore, a person can passively “ensure” the continuation or preservation or keeping of something in its present condition by not destroying it. In my view, therefore, the phrase “assurer … le maintien en état” incorporates both an active and a passive meaning. [ 49 ] The ordinary meanings of the word “entretenir” must also be considered. Although some of the

definitions clearly suggest an active meaning to the word “entretenir,” the

definitions and synonyms indicate that a passive meaning of the word is also acceptable (see, in particular, Le Nouveau Petit Robert ). In my view, the ordinary usage of the word “entretenir” can incorporate both an active and a passive meaning. It is, consequently, my view that the French definition of “entretenir” in the Act includes both passive and active meanings of the word. [ 50 ] Thus, in my opinion, both the English definition of the word “maintain” and the French definition of the word “entretenir” in s. 1 of the Act incorporate both passive and active meanings.

Consequently, a person can “maintain water control works” either by actively keeping them in a good state of repair or by passively keeping them in their existing state.

Furthermore, as discussed above, this viewpoint also aligns with the broader legislative provision, as it reflects an understanding that some “water control works,” such as dykes, dams, drains or canals, will not necessarily require any active maintenance to be “kept in existence” or to ensure the continuation, preservation or keeping of their present condition or state. [ 51 ] As a result, there is, in fact, no discordance between the French definition of “entretenir” and the English definition of “maintain.” The shared ordinary meaning of both versions includes both active and passive meanings of the words.

As there is no discordance between the two versions, it is unnecessary to consider the remaining steps of the Shared Meaning Rule. [ 52 ] This shared ordinary meaning is also consistent with the overall purpose and general scheme of the Act , being to ensure that the province has complete control over the use, diversion and drainage of water in Manitoba. If the meaning of “maintain” included only the active sense of the word, the legislative goal could be circumvented by a person who surreptitiously constructed or established works or water control works on his land without a licence.

In such a case, there would be no direct evidence to identify the person who constructed or established the works or water control works, and no direct evidence as to when the works or water control works were actually constructed or established. [ 53 ] Furthermore, depending upon the nature of the works or water control works, the works or water control works may not need to be operated or actively maintained. Consider, for example, an excavation or a trench which is dug into a field in anticipation of heavy rainfalls or spring flooding.

In such a scenario, a prosecution under s. 3(1) of the Act would likely be unsuccessful as there would be no proof that the person operated or actively maintained the works or water control works. With passive maintenance, however, a prosecution would be possible. [ 54 ] In addition, s. 4(1) of the Act states that the minister can only make an order requiring the removal of the works or water control works “[w]here a person … has constructed or established or is operating or maintaining any works or water control works in breach of

section 3 .” If only active maintenance is included, and there is no proof that the person constructed, established, operated or actively maintained the works or water control works, then there would be no breach of s. 3, and the minister would have no jurisdiction to order the removal of the works or water control works under s. 4(1) . This would effectively thwart the intent of the legislation. With passive maintenance, however, upon discovery of the unlicensed works or water control works, the minister would have jurisdiction to

act under s. 4(1) and could take immediate steps to have the works or water control works removed before actual water diversion, drainage or control occurs. [ 55 ] In short, the goal of the legislation is only achieved if both the active and passive meanings of “maintain” are adopted.

e) Can a Section 4(1) Removal Order Be Issued if the Crown is Statute-Barred from Prosecuting a Breach of Section 3(1)? [ 56 ] On a related matter regarding s. 4(1) , and in response to the appellant’s position that the word “maintain” only includes the active meaning of the word, the issue was raised whether the minister can issue an order under s. 4(1) to remove unauthorized works if the Crown is statute-barred from prosecuting the breach of s. 3(1) .

Section 23(5) establishes a two-year time limit for the “prosecution” of an “offence.” Significantly, the time limit in s. 23(5) makes no mention of the minister’s power to issue an order under s. 4 for a breach of s. 3. [ 57 ] Clearly, as the issuance of a ministerial order under s. 4 cannot be considered a “prosecution” of an “offence,” the time limit in s. 23(5) does not apply to issuance of an order under s. 4.

This conclusion also accords with the primary goal of the Act , as it allows the province to re-establish its control over unauthorized diversion and drainage projects irrespective of whether or not a prosecution is statute-barred by s. 23(5) . [ 58 ] Moreover, while it was not raised at the appeal hearing, I note that the appellant would also have to contend with s. 23(4), which states that, for the purposes of s. 23, each day’s continuance of any act that is an offence under the Act constitutes a separate offence.

f) Application to This Case [ 59 ] In the present case, it was uncontested that the T1 and T3 trenches were on the appellant’s land and not properly licensed. The prohibited act required to be proved by the Crown was that the appellant maintained these trenches. It did not have to prove that the appellant knew the trenches were on his land or that he actively maintained them. [ 60 ] As “maintenance” of these trenches includes keeping them in existence without active maintenance, it follows that the Crown had established the actus reus of the offence.

The appellant could have avoided liability by establishing, on a balance of probabilities, that he reasonably did not know the trenches existed or by proving that, although he had known of their existence, he had acted with due diligence. However, he presented no evidence in defence of the charges brought against him. [ 61 ] As a result, I would conclude that the appellant’s passive maintenance of the trenches was sufficient in law to constitute the prohibited act under s. 3(1) (

c) of the Act . Conclusion [ 62 ] In

summary, I would conclude that: 1) the appeal judge erred in law in upholding the convictions on the basis of facts not supported by the trial record; 2) s. 3(1) offences are strict liability offences; 3) the word “maintain” in the phrase “maintain any water control works” in s. 3(1) (

c) of the Act imports both a passive and active meaning; 4) the prohibited act or actus reus of the s. 3(1)(

c) offence in this case would be maintaining, by keeping in existence, an illegal trench; the Crown need not prove that the appellant actively maintained the trench; 5) because the offences with which the appellant was charged are strict liability offences, the Crown is not required to prove his knowledge or awareness of the underlying facts constituting the offence – that a trench existed; once the Crown has proved the prohibited act, the burden shifts to the appellant to prove, on a balance of probabilities, that he acted with due diligence by taking all reasonable care; this can be established either by proving that he did not reasonably know about the facts or circumstances underlying the offence, or by proving that, although he knew of the underlying facts, he was duly diligent in attempting to avoid the prohibited result; 6) the Crown has proved that the appellant maintained the trenches situated on his land, by keeping them in existence, and that in the absence of evidence establishing that he acted with due diligence by taking all reasonable care, the appellant is guilty of these offences; and 7) as the issuance of a ministerial order under s. 4 cannot be considered a “prosecution” of an “offence,” the time limit in s. 23(5) does not apply to issuance of an order under s. 4. [ 63 ] In the result, while the appeal judge erred, I would, for these reasons, uphold the convictions and dismiss the appeal. ______________________________ J.A.

I agree: ______________________________ J.A. I agree: ______________________________ J.A.