R. v. Bowers, 2016 NSSC 191

Supreme Court of Nova Scotia Citation: R. v. Bowers, 2016 NSSC 191 Date: 20160722 Docket: Hfx No. 448903A Registry: Halifax Between: Her Majesty the Queen Appellant v. Bridgid Mary Bowers and Michael David Moore Respondent Library Heading Judge: The Honourable Justice Peter Rosinski Heard: June 15, 2016, in Halifax, Nova Scotia Final Written Submissions: July 11, 2016 Written Decision: July 22, 2016 Subject:

Summary Conviction Appeal – Land-use Bylaw – Statutory

interpretation and continuing offences

Summary: In 2006, the homeowners built a 750 ft.² building on their property without approval, yet while knowing 650 ft.² was the maximum size permitted. In November 2013, HRM received a complaint, and investigated. Homeowners charged in July 2014 that they did between November 13, 2013 and July 10, 2014 “unlawfully allow an accessory building greater than 650 ft.² in area, contrary to s. 27A of the Dartmouth Land-use Bylaw, pursuant to s. 369(1) of the Halifax Regional Municipality Charter ”.

At trial, the judge found that the offence was not a continuing offence, and that the two-year limitation period in s. 370A ended in 2008. Therefore the prosecution was precluded and he dismissed the charge. The Crown appealed. Issues:

(1) What precisely is the “alleged offence”?

(2) Is the offence herein a continuing one or not?

(3) What is the remedy, if the appeal succeeds? Result:

(1) The alleged offence here has two components: (

a) The specific offence provisions: pursuant to ss. 7 and 27A of the Dartmouth Land-use Bylaw; and (

b) The general offence (and sentence) provision: pursuant to s. 369(1) Halifax Regional Municipality Charter .

(2) Section 7 provides that it is an offence to “erect” or “maintain” a non-compliant building/s. 27A sets out the dimensions permitted for compliant buildings. The offence herein is capable in law of being a continuing offence, and is arguably so on the facts presented to the trial judge.

(3) The trial judge erred in ruling that this was not a continuing offence. It was not appropriate to enter a conviction because, at trial s. 7 of the Dartmouth Land-use Bylaw was not specifically identified as a component of the offence, and the trial judge did not rule on the defence of “officially induced error” as a result of his finding the limitation period precluded the prosecution. New trial ordered. No costs given the unsettled jurisprudence. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: R. v. Bowers , 2016 NSSC 191 Date: 20160722

Docket: Hfx No. 448903A Registry: Halifax Between: Her Majesty the Queen Appellant v. Bridgid Mary Bowers and Michael Moore Respondent Judge: The Honourable Justice Peter Rosinski Heard: June 15, 2016, in Halifax, Nova Scotia Final Written Submissions: July 11, 2016 Counsel: Joshua Judah and Shawnee Gregory for the Appellant Richard W. Norman for the Respondent By the Court: Introduction [ 1 ] In March 2006, Ms. Bowers and Mr. Moore, [“the home owners”] built, and have continued to use, a 750 ft.² accessory building on their residential property in Dartmouth.

The applicable land-use bylaw and zoning (R-2), restrict the size of an accessory building to no greater than 650 ft.². [ 2 ] By information sworn July 16, 2014, the owners were charged that they did between November 13, 2013 and July 10, 2014 “unlawfully allow an accessory building greater than 650 ft.² in area, contrary to s. 27A of the Dartmouth Land Use Bylaw, pursuant to s. 369(1) of the Halifax Regional Municipality Charter ”. [ 3 ] At trial, the owners argued that the offence alleged was complete once the construction of the accessory building ended in 2006, and therefore a two-year limitation period arising by virtue of s. 370A of the Halifax Regional Municipality Charter, SNS 2008, c. 39 , [“the HRM Charter”] precluded their conviction. [ 4 ] The Honourable Provincial Court Judge Daniel A.

MacRury dismissed the charge against the owners. He agreed that the offence was not a continuing one, and therefore their conviction was precluded, the charge having been laid after the expiry of the two-year limitation period. [1] [ 5 ] The central dispute on appeal involves the proper characterization of the offence charged as either a continuing offence or not. The important facts are not in dispute. At trial an Agreed Statement of Facts was presented, which was supplemented by the testimony of two witnesses. Standard of review [ 6 ] This Crown appeal comes before me through the combined application of the

Summary Proceedings Act , RSNS 1989, c. 450, and our Civil Procedure Rule 63. [ 7 ] The Crown says that the error in Judge MacRury’s decision arises from his statutory

interpretation of the relevant legislation, and should therefore be reviewed on a standard of correctness. The defence argues that the questions to be decided by this Court are whether Judge MacRury properly found that the offence did not continue in time and whether the limitation period applied.

Those being questions of fact, the standard of review should be palpable and overriding error, even if such questions are ones of mixed fact and law. [ 8 ] In my view, the proper standard of review here regarding the meaning of ss. 369 and 370A of the HRM Charter and the Dartmouth Land-Use Bylaw is one of correctness - Wilmot v. Ulnooweg Development Group Inc. 2007 NSCA 49 per Saunders J.A. at paragraph 24 – 25; Housen v. Nikolaisen 2002 SCC 33 at para. 28 . The trial judge was not facing any material dispute of fact. Depending on whether the offence is a continuing one or not is determinative here.

Whether the charged offence is a continuing offence or not depends heavily on the proper

interpretation of the sections. If the offence is capable of being continuing in nature, and the wording of the charge supports that conclusion as well, the owners’ building is non-compliant, and they are arguably guilty [unless their “officially induced error” defence is successful].

[9] I conclude that: the offence herein has the following constituent parts: s. 7, 27A of the Dartmouth Land-Use Bylaw [the specificoffence] and s. 369 of the HRM Charter [the general offence and penalty]; and as a matter of law, it is capable of being a continuingoffence. On the facts presented, it was a continuing offence. With respect, Judge MacRury erred in concluding otherwise. Let meelaborate as to why that is so.

The statutory provisions in question Dartmouth Land-Use Bylaw 7 No person shall erect, alter, repair or maintain any building or locate or carry on any industry, business, trade, or calling or use any land orbuilding within any zone without complying with the provisions of this bylaw. 27A No accessory building in any…R-2… Zone shall be greater than 15 feet in height nor greater than 650 ft.² in area. [2] Halifax Regional Municipality Charter 369(1) - A person who

a) violates a provision of this Act or of an order, regulation or bylaw in force in accordance with this Act;

b) fails to do anything required by an order, regulation or bylaw in force in accordance with this Act;

c) permits anything to be done in violation of this Act or of an order, regulation or bylaw in force in accordance with this Act; or

d) obstructs or hinders any person in the performance of their duties under this Act or under any order, regulation or bylaw in force inaccordance with this Act, is guilty of an offence.

(2) Unless otherwise provided in a bylaw, a person who commits an offence is liable, upon

summary conviction, to a penalty of not lessthan $100 and not more than $10,000 and in default of payment, to imprisonment for a term of not more than two months.

(3) Every day during which an offence pursuant to subsection (1) continues is a separate offence.

(4) In addition to a fine imposed for contravening a provision of this Act, a regulation or a bylaw of the municipality made pursuant to thisAct, a judge may order the person to comply with the provision, order, regulation or bylaw under which the person was convicted, withinthe time specified in the order. s. 370A- Notwithstanding the

Summary Proceedings Act, the limitation period for the prosecution of an offence under a land-use bylaw or adevelopment agreement is two years from the date of the commission of the alleged offence. [2010 SNS c. 16, HRM Charter amended, andin force May 11, 2010]. [10] Until May 11, 2010, the governing limitation period was six months. That limitation period derived from the adoption of s. 786(2)Criminal Code through s. 7 of the

Summary Proceedings Act RSNS 1989 c. 450. Section 786(2) reads: No proceedings shall be instituted more than six months after the time when the subject-matter of the proceedings arose, unless theprosecutor and the defendant so agree. Analysis 1.

What is “the date of the commission of the alleged offence” as those words appear in s. 370A? [11] The starting point is to precisely identify “the alleged offence”. a- What is “the alleged offence”? [12] The wording of the charge is that the owners did: “unlawfully allow an accessory building greater than 650 ft.² in area, contrary tos. 27A of the Dartmouth Land-Use Bylaw, pursuant to s. 369(1) of the Halifax Regional Municipality Charter.” [13] The subsections of s. 369 of the HRM Charter provide multiple forms of commission of the offence.

By including s. 369(3) thelegislators clearly intended that any of the offences included within s. 369 could be capable of continuing offences. The word “allow” does not appear in s. 369; nor is it defined in the HRM Charter. What does “allow an accessory building greater than 650 ft. 2 … contrary to s.27A…” mean? [14] In this case, the owners did not require the Crown to further particularize the subsection they were relying upon. To the extent thatthe Crown does particularize the offence charged, such particularization must be proved – R. v. Saunders, (SCC), [1990]1 S.C.R. 1020 .

However, the Crown need not particularize the means by which the offence is committed – s. 583(

f) Criminal Code. Under which subsection(

s) of s. 369 HRM Charter did the parties argue the case at trial? [15] Although the use of the word in the charge- “allow”- may be considered most similar to the word “permits” [anything to be done inviolation of…[a] land-use bylaw… in s. 369(1)(c)] ,the arguments made at trial are also consistent with the Crown having relied upon s.369(1)(a) [“violates…a bylaw”], as a means of the offence having been committed.

[ 16 ] At trial, counsel did not expressly address this matter. They focused their attention on the significance and

interpretation of s. 369(3), which for continuing offences expressly provides that penalties can be imposed for each consecutive day that the offence persists. Whether the charged offence here is a continuing offence or not, will depend on the statutory

interpretation of the relevant legislation, in combination with the wording of the charge, and the factual background. [ 17 ] Notably, in its appeal factum HRM states as follows: The Respondents committed an offence when they constructed the oversize accessory building in March 2006. However, this is distinct from the continuing offence they are currently charged with of allowing the building to remain on their property. This passive conduct or obligation to comply with the bylaw is ongoing. It remains after construction. [ 18 ] The commission of the initial offence by the homeowners “when they constructed the oversize accessory building” could arguably be charged under ss. 369(1)(

a) or (c). By constructing the building, they may have violated the land-use bylaw; by permitting others to assist in constructing the building they may also have violated the land-use bylaw. [3] [ 19 ]

Section 369 is a general

section designed to ensure that persons who act in a manner disallowed by the HRM Charter , may be subject to prosecution and penalty if convicted. It provides various means by which an offence can be committed. [ 20 ] While it is arguable to characterize the Crown’s allegation as under s. 369(1) (c) - that the owners “permitted” a violation of the land-use bylaw; the mere use of the word “allow” in the information does not necessarily preclude HRM’s reliance upon s. 369(1) (a).

This is so in part because I accept that there is a difference between the word “allow” and “permit”, and bearing in mind as well that “allow” is HRM’s chosen wording in the information – and thus not subject to “statutory

interpretation”. [ 21 ] In R. v. Bird Construction Group , 2014 NSPC 33 , Judge Theodore Tax had occasion to comment on s. 369(1) (c): DID THE ACCUSED "PERMIT" THE VIOLATION OF THE BY-LAW? 42 In that factual context, which is similar to the facts before me, Dickson J. noted in Sault Ste.

Marie , supra , at page 1329: The prohibited act would, in my opinion, be committed by those who undertake the collection and disposal of garbage, who are in a position to exercise continued control of the activity and prevent the pollution from occurring, but fail to do so...The "causing" aspect centers on the defendant's active understanding of something which it is in a position to control and which results in pollution.

The "permitting" aspect of the offence centers on the defendant's passive lack of interference or, in other words, its failure to prevent an occurrence which it ought to have foreseen... … 46 The term "permits" is not defined in either the HRM Charter or in By-law S-600 respecting "Solid Waste Resource Collection and Disposal" which was in effect on May 31st, 2012. 47 The term "permits" has, however, been judicially considered in the case of R. v.

Millar , 1953 CarswellMan 4 (Man.C.A.) at para. 62 , where the court held, in the context of a municipal by-law that: “Permit" is defined as "not to hinder." Webster defines the word as more negative than "allow"; that it imports only acquiescence or an abstinence from prevention… It would seem therefore, that to permit or suffer implies no affirmative act. It involves no intent. It is mere passivity, indifference, abstaining from preventative action. 48 The Millar case was cited by the Court in Sault Ste. Marie to assist in interpreting the word "permit" which is frequently found in public welfare statutes.

It would appear that Dickson J. relied, in part, on the definition provided by the Court in Millar when he defined "permitting" in Sault Ste. Marie , supra , at page 1329, as the "defendant's passive lack of interference or, in other words, its failure to prevent an occurrence which it ought to have foreseen". (my emphasis) [ 22 ] I accept Judge Tax’s

interpretation. On its face, and in the context of the other subsections in s. 369(1) , “permit” includes a “defendant’s passive lack of interference or, in other words, its failure to prevent an occurrence which it ought to have foreseen”. “Allow” suggests a more active connotation and greater level of intention, as contrasted with “permit”. [4] [ 23 ] HRM did not specify in the charge under which subsection s. 369 the offence was alleged. However, it could have relied upon either s. 369(1) (

a) or (

c) in its prosecution of the homeowners when they initially [had] constructed the accessory building. Use of the words “unlawfully allow an accessory building” could include the manner of committing the offence pursuant to s. 369(1) (

a) or (c). This conclusion is significant because HRM is relying on a claimed “continuing” offence. Identifying the initial offence in March 2006 is therefore important. To be clear, the offence is breach of s. 369 , which arises because of, and incorporates therein ss. 7 and 27A of the Land-Use Bylaw. Next, I will examine whether those offences: are capable in law of being continuing offences; and capable on the facts herein of being continuing offences. (

b) As a matter of statutory

interpretation, are the offences herein underlying s. 369(1)(

a) or (

c) capable of being a continuing offence? Statutory

interpretation of ss. 369(1)(

a) and (c), and 370A [ 24 ] The

Interpretation Act , RSNS, 1989 c. 235, as amended, sets out the rules of construction in ss. 6-21. Most significant for present purposes are the following:

9(1) the law shall be considered as always speaking and, whenever any matter or thing is expressed in the present tense, it shall be appliedto the circumstances as they arise, so that effect may be given to each enactment, and every part thereof, according to its spirit, true intent,and meaning. … (5) every enactment shall be deemed remedial and interpreted to ensure the attainment of its objects by considering among other matters a-the occasion and necessity for the enactment b-the circumstances existing at the time it was passed c-the mischief to be remedied d-the object to be attained e-the former law, including other enactments upon the same or similar subjects f-the consequences of a particular

interpretation; and g-the history of legislation on the subject. [25] Statutory

interpretation was commented on by the Court of Appeal in R. v. R.V.F., 2011 NSCA 71 per Beveridge J.A., at para. 29(albeit in the context of the criminal law (i.e. Youth Criminal Justice Act and Federal

Interpretation Act): A word or phrase should not be examined in isolation, but in context and in accord with the recognized principles of statutory

interpretation.The correct approach to statutory

interpretation is straightforward and oft repeated. Recently in Cape Breton (Regional Municipality) v.Nova Scotia (Attorney General), 2009 NSCA 44, MacDonald, C.J.N.S. wrote: [36] The Supreme Court of Canada has endorsed the "modern approach" to statutory

interpretation as expounded by Elmer Driedger,Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at p. 87: ... the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of theAct, the object of the Act, and the intention of Parliament. See Re Rizzo and Rizzo Shoes Ltd., (SCC), [1998] 1 S.C.R. 27 at 41; Canada (House of Commons) v. Vaid, 2005 SCC 30,[2005] 1 S.C.R. 667; and Imperial Oil Ltd. v. Canada; Inco Ltd. v. Canada, 2006 SCC 46, [2006] 2 S.C.R. 447. See also: Coates v. Capital Health District Authority, 2011 NSCA 4, at para. 36; Nova Scotia (Health) v. Morrison Estate, 2011 NSCA 68,at para. 14 and Waterman v.

Waterman, 2014 NSCA 110 per Beveridge J.A., at paras. 29-32. [26] In R. v. Hamilton Health Sciences Corp., (2000) (ON CA), 51 OR (3d) 83, and R. v. Newton – Thompson,2009 ONCA 449, the Ontario Court of Appeal was required to consider whether the statutory duty to report occupational health injuryoccurrences and suspicion of child abuse, were continuing offences or not. [27] The court interpreted the legislation in both cases by identifying the above-noted obligations as central to the legislation, andfocused on which

interpretation would best ensure that the objects of the legislation were achieved. Their method of analysis is appropriatein the case at bar as well. [28] It is important to recall that the core offence here is contained in s. 7 Dartmouth Land-Use Bylaw. On its face that provisionallows for a static and continuing offence; namely, the erection of, and maintenance of, a non-compliant building. [29] As required, I will consider: (

i) What did the legislators intend in writing the HRM Charter and Land-use Bylaw as they did? (ii) What is the meaning of the text found in s. 369(1)(a), (

c) and s. 370A of the HRM Charter and s. 7 of the Land-use Bylaw? (iii) What are the consequences of my proposed

interpretation? [30]

Section 2 of the HRM Charter states: The purpose of this Act is to

a) give broad authority to the Council, including broad authority to pass bylaws, and respect its right to govern a municipality in whateverways the council considers appropriate within the jurisdiction given to it;

b) enhance the ability of the council to respond to present and future issues in the municipality; and

c) recognize that the functions of the municipality are to

i) provide good government, ii) provide services, facilities and other things that, in the opinion of the council, are necessary or desirable for all or part of the municipality, and iii) develop and maintain safe and viable communities.” [ 31 ] What then is the purpose of s. 369 ? [ 32 ]

Section 235 deals with “Content of land-use bylaw” and is found in

Part 8 [Planning and Development]. At its core, the home- owners were charged with violating a land-use bylaw. These bylaws are intended to allow municipalities to regulate activities on privately owned land. There are numerous justifications for such bylaws.

Bylaws ensure that property owners are aware of the limitations placed on the use of their properties before, and after, they acquire them; they also ensure that property owners are aware of the obligations they have in relation to those properties, many of which are intended to balance the competing interests of individual property owners as against their surrounding community – whether those are aesthetic or more tangible, such as safety concerns, or those that have financial implications. [ 33 ]

Section 369 is found in

Part 19 [General] of the HRM Charter . It seeks to make non-compliance an offence in whatever form it takes. But not all offences are “continuing offences” under s. 369(3) HRM Charter . Similar earlier iterations have existed: the Municipal Act , RSNS 1954, c. 185, ss. 147-148; and RSNS 1967, c.192 ss. 194-196; Municipal Government Act ,1998 SNS, c.18 s. 505. [ 34 ]

Section 369 deals with the prosecutorial enforcement of violations of the Act, regulations or bylaws-its purpose is to support the objectives of HRM’s land-use bylaws. No more analysis is required. [ 35 ] Notably, the two-year limitation period in s. 370A relates only to “an offence under a land-use bylaw or a development agreement”. That

section only came into force May 11, 2010. I have no evidence or other means in this appeal to understand why the general six (6) month limitation period was extended thereby to two (2) years for such circumstances only. [ 36 ] In relation to s. 370A HRM Charter , it is worth recalling as well what Justice Côte stated, though in the context of civil litigation: see, CIBC v. Green 2015 SCC 60 at paras. 57-58 : This court has generally recognized that limitation periods have three purposes known as the certainty, evidentiary, and diligence rationales: Novak v.

Bond , [1999] one SCR 808 at paras.64-67, per McLachlin J… Limitation periods and serve “ (1) to promote accuracy and certainty in the adjudication of claims; (2) to provide fairness to persons who might be required to defend against claims based on stale evidence; and (3) to prompt persons who might wish to commence claims to be diligent in pursuing them in a timely fashion”… Clearly, it is desirable that litigation be accurate and certain, given that the passage of time dims memories erodes evidence, and also that the risk of error grows as an adjudicator is further removed from the cause of action.

Furthermore, after a certain time, possible defendants may be unaware of the need to preserve potentially enlightening or even exonerating pieces of evidence. Finally, it is appropriate to expect plaintiffs to assert their claims diligently and be cognizant of their circumstances and of the extent of their control over them. Modern limitations legislation is therefore based on a recognition that limitation periods, in order to be effective, need to be final.

This is the other side of the coin, the practical consequence of limitation periods that can make the application of the limitation statute seem harsh…”. [ 37 ] In the quasi-criminal context, such as in the case at bar, ambiguity regarding legislated limitation periods should be construed as against the legislator. Citizens should not face the uncertainty of prosecution at some distant point in the future, without any compelling countervailing interest at play. I do not find the wording of s. 370A to be ambiguous.

Whereas in fact, the circumstances arising in individual cases may create uncertainty as to whether an offence is “continuing” or not, the legislation itself is not ambiguous. (

c) Is this an instance of a continuing offence? [ 38 ] A major incentive for drafting a continuing offence was concisely stated in Regulatory and Corporate Liability: From due diligence to risk management [Todd Archibald, Kenneth Jull, and Kent Roach] Toronto: Canada Law Book 2013 at p. 3-37: Limitation periods are a vexing problem for prosecution of regulatory offences. Many regulatory offences do not have a “victim” per se who will complain to authorities, and as a result such offences will be prosecuted only upon discovery by an agent in question.

If the default limitation period is six months, this may present a very short window within which to discover the offence. [ 39 ] For municipalities outside of HRM, an identical

section in the Municipal Government Act , SNS 1998 c.18, as amended, applies.

Section 505 thereof is almost identical to s. 369 of the HRM Charter . [ 40 ] I have found little helpful jurisprudence regarding when is an offence a “continuing offence”, either under s. 369(3) HRM Charter or s. 505(3) Municipal Government Act . [ 41 ] In R. v. Rockwell , 2009 NSPC 23 , the Honourable Judge Michael Shearer stated: 63 It is the conclusion of this Court that the charge contrary to

Section 505 [1] of the Municipal Government Act before this court alleging a breach of

Section 35 [3] of the Halifax Peninsula Land-Use Bylaw by the defendant between July 25, 2007 and January 25, 2008 is a single continuing offence. As drafted, it meets the requirements of the

Summary Proceedings Act of Nova Scotia and the Criminal Code

Section 789.

[42] In R. v. Lewandowski, 2010 NSPC 37, Judge Jamie Campbell (as he then was) stated: 9 [s.505(3) MGA] is clearly intended to be a disincentive to those who would otherwise flout a municipal bylaw because it may be lessexpensive to pay a fine, even a maximum $10,000 fine, than to comply. It also may have the effect of raising the stakes for anyone whodisagrees with the

interpretation of a situation upon being told that they are in breach. When each day is an offence the cost- benefitanalysis changes considerably. [43] In the case at bar, before they built, the owners were aware that the maximum allowable size of an accessory building on their property was 650 ft2. With that knowledge they completed the 750 ft 2 building in March 2006. Prior to the point of its completion, theymay be said, to have permitted its construction by others, or that they violated the by-law while knowing that the building was notcompliant with the Dartmouth Land-Use Bylaw [i.e. erecting a non-compliant building]. But are they thereafter still in breach of s. 369(1)(

a) or (c)? I conclude that they are. [44] The wording of ss. 7 and 27A of the Land-Use Bylaw [which initially could have been considered as under s. 369(1)(

a) or (c)]create a continuing offence. [45] The erection of the non-compliant building in 2006, and mere presence of the building thereafter on the property dictate apreliminary finding that they have continued, to “violate” the land-use bylaw. The bylaw makes it an offence to “maintain” a non-compliantly erected building. I find the meaning of the word “maintain” to be unambiguous in this context. [5] [46] The jurisprudence indicates an important distinction between being served with an order to comply coupled with a refusal orfailure to comply [e.g. York (Regional Municipality) v.

Martin Grove Properties Ltd., 2011 ONCA 711] and the doing of a specific act[whether continuing or not] that does not comply with legislation [e.g. R. v. Rutherford, (1990) (ON CA), 38 OAC 41]. The home-owners have not been charged with a refusal or failure to comply with the Notice to Comply sent to them February 4, 2014. They are charged with having built and maintained a non-compliant building. [47] The notion of continuing offence in the context of s. 369 was discussed by the Honourable Judge Michael B. Shearer in R. v.Rockwell 2009 NSPC 23.

There the defendant pled guilty that she did between July 25, 2007 and January 28, 2008 allow her land to beused in a way not permitted within an R–2 zone, to wit: building containing more than four apartments contrary to s. 35(3) of the HalifaxPeninsula Land-use Bylaw, contrary to then s. 505 of the Municipal Government Act. [48] While Judge Shearer was considering this issue in relation to the sentencing after a guilty plea, he did refer to the Supreme Court ofCanada decision in Bell v.

R., (SCC), [1983] 2 SCR 471 per McIntyre, J. in the context of the importation of narcotics intoCanada: A continuing offence is not simply an offence which takes or may take a long time to commit. It may be described as an offence wherethe conjunction of the actus reus and the mens rea, which makes the offence complete, does not, as well, terminate the offence. Theconjunction of the two essential elements for the commission of the offence continues and the accused remains in what might bedescribed as a state of criminality while the offence continues. Murder is not a continuing offence.

When the requisite intent to kill ispresent the crime is complete when the killing is effected. Conspiracy to commit murder could be a continuing offence. The actus reus andmens rea are present when the unlawful agreement is made and continue until the killing occurs or the conspiracy is abandoned. Whateverthe length of time involved, the conspirators remain in the act of commission of a truly continuing offence. Theft is not a continuingoffence. It is terminated when the wrongful taking has occurred with the requisite intention.

On the other hand, possession of goodsknowing them to have been obtained by the commission of theft is a continuing offence. The offence of kidnapping would not be acontinuing offence, but that of wrongful detention of the victim following the kidnapping would be. (my emphasis) [49] In Rutherford, noted above, Grange, J.A. adopted a definition from an English case, R. v. Industrial Appeals Court; Ex-parteBarelli’s Bakeries Pty.

Ltd. [1965] VR 615 (SC) at p.620: A continuous or continuing offence is a concept well known in the criminal law and is often used to describe two different kinds of crime.There is the crime which is constituted by conduct which goes on from day to day and which constitutes a separate and distinct offence eachday the conduct continues. There is, on the other hand, the kind of conduct, generally of a passive character, which consists in the failure toperform a duty imposed by law.

Such passive conduct may constitute a crime when first indulged in, but if the obligation is continuous thebreach though constituting one crime only continues day by day to be a crime until the obligation is performed. [50] In Hamilton Health Sciences Corp. at paragraphs 16-17, that court went on to point out: In Barelli’s Bakeries, the court went on to hold that if the offence is a continuing one, the right to lay an information is not barred if thebreach (the failure to perform the duty) has continued up to the day the information was laid or if the breach was cured before theinformation was laid, as in this case, the time counts from the day the duty was performed.

It is helpful to consider the legislation in issue inthat case. The charge was laid under legislation that provided as follows: ‘Where any employer employs any person on work for which thelowest prices or rates have been fixed in a determination, such employer shall be liable to pay and shall pay in full in money without anydeduction whatever to such person the price or rate are determined’. The “determination” fixed the time for payment. The Supreme Court of Victoria held that the statutory obligation to pay was not spent ifpayment was not made at the time fixed by the determination.

Thus, while only one offence was committed, that offence continued untilthe obligation was performed. In my view, the same result should follow in this case.”

[51] However, as the home-owners point out, in Rutherford, Grange, J.A. did not find it to be a continuing offence where the accusedelectrical contractor was convicted of two counts of neglecting to comply with regulations in his installation of an electrical panel. Hespecifically relied on the comments of Justice McIntyre in Bell, supra, to the extent that the actus reus and the mens rea must continue toco-exist for the matter to be characterized as a continuing offence.

Moreover, he concluded in that case that the offences there were not ofthe first or second type cited from Barelli’s Bakeries. [52] The Crown relies on R. v. Sadolims Enterprises Ltd. 2013 BCSC 2172. In that case a second floor addition had been builtsometime before 1983. In 2008 a bylaw inspector determined the building was not in accordance with development building permits anddirected the accused to obtain these permits or remove the non-compliant portion.

After the owners applied for them, the permits were notapproved. [53] That case is distinguishable in the sense that an order was given to the owner, and the owner’s failure to comply therewith is theoffence, not the original non-compliance. [54] So what is the actus reus and mens rea of each of the s. 369(1)(

a) and (

c) means of committing the s. 369 offence here?

Once Ihave identified those constituent aspects, I will ask myself if those elements continued to co-exist over the time period from March 2006 tothe dates charged here? [55] The actus reus alleged in the case at bar, requires proof beyond a reasonable doubt, that a person is “an owner” of a property, asdefined by s. 3(av) HRM Charter, and has erected thereon, and thereafter continuously maintained, an accessory building greater than 650ft.² in area; the mens rea flows from having done so (one can be presumed to have known it was an offence), unless it is demonstrated on abalance of probabilities that one has taken reasonable steps to avoid the particular event, or that one reasonably believed in a mistaken set offacts which, if true, would render the act or omission innocent, if one took all reasonable steps to avoid the particular event. [56] If from the time they constructed the building to present, the home-owners were aware that the building was oversized and incontravention of s. 27A Dartmouth Land-Use Bylaw, is that not a quintessential continuing offence? [57] The homeowners adopt the decisions from Ontario, which Judge MacRury relied upon to acquit them: R. v.

Rutherford, (ON CA), [1990] 38 OAC 41; R. v.

Pickles, (ON CA), [2004] 184 OAC 78; Thunder Bay(City) v.Bodnar, 2000 70 ONCJ 686. [58] Notably each of those cases is distinguishable. [59] In Bodnar, the court concluded at para. 28: Furthermore, again following the Pickles decision, this court concludes that this offence under the bylaw is not a continuing one; the act of“erecting” a structure is complete when the structure is completed or work stops. [60] In Bodnar the court also referred to Rutherford and Pickles at para.26: Regarding the continuing offence issue, the Court of Appeal in Pickles, citing another decision of that court [Rutherford] concluded that inboth cases there had been a specific act – in Pickles, the construction of the dock without a permit, and Rutherford, the faulty installation ofthe electrical panel.

At paragraph 22 of Pickles the court stated, ‘in both cases, the consequences of the specific act continued in a sense –the electrical equipment was not repaired and a building permit was never obtained.

However, in Rutherford this Court held that thecompletion of the specific act triggered the commencement of the limitation period. [61] In each of those cases, the legislation defined the offence as a specific act that triggered the commencement of the limitationperiod. [62] In Pickles, the offence was based on s. 8(1) of the Ontario Building Code Act which read in part: “no person shall construct….abuilding… unless a permit has been issued therefor by a building official.” [63] In Rutherford, the electrical contractor was charged with faulty installation of electrical equipment contrary to s. 93(11)(

b) of theOntario Power Corporation Act. That subsection read in part: every… individual…(

b) refusing or neglecting to comply with this section,or with any regulation, plan or specification made under its authority is guilty of an offence and on conviction is liable to a fine of not lessthan $25 and not more than $500 for each offence;…”. [64] Notably in Pickles, at paras. 23-25, the court took comfort in its conclusions, both in that case and Rutherford, because theLegislature specifically addressed the subject of continuing offences in neither of the specific sub-sections under which Mr.

Pickles andRutherford had been charged, however it did so by express references to continuing offences in neighbouring sections, within which theoffences charged against Mr. Pickles and Rutherford were contained. [6] [65] In contrast, here the land-use bylaw offence is not limited to only a specific act.

Section 7 expressly refers to the erection andmaintenance of a non-complaint building as distinct offences. Maintaining a non-compliant building in violation of ss. 7 and 27A of theDartmouth Land-Use Bylaw is a continuing offence under s. 369(1)(

a) HRM Charter. [66] This

interpretation is more consonant with the objectives of land-use bylaws generally, and the one in question here. If suchoffences are not of a continuing nature, then after six months, or two years, persons who knowingly are non-compliant with the Act,regulations or bylaws, would be able to enjoy non-compliant uses of their property. Such outcomes are contrary to the fundamentalobjectives of the legislation, and overlook the difficulty of the timely discoverability of such violations.

I note that courts have beengenerous with their use of the Remission of Penalties Act, RSNS 1989, c. 397, when called upon to impose financial penalties in such cases. Having said that, I appreciate that the home-owners may also be ordered to dismantle a non-compliant building – s. 369(4) HRM Charter.

[ 67 ] I acknowledge that HRM has alternative courses of action such as an injunction pursuant to s. 202 of the HRM Charter , but such course of action may not suit many circumstances. It is always open to HRM to modify its legislation to avoid perceived problems.

Conclusion [ 68 ] In answer to the question of what is “the date of the commission of the alleged offence” as those words are contained in s. 370A, I find the offence underlying, and specifically charged here is a continuing offence. [ 69 ] I conclude, with great respect, that Judge MacRury erred in concluding otherwise. [ 70 ] For situations of continuing offences, limitation periods begin to run when enforcement authorities discover an offence; while in single-act offence situations the limitation period begins to run when the offence is completed, regardless of when the enforcement authorities discover the offence. [ 71 ] Arguably, the limitation period began to run as early as the offence having been brought to HRM’s attention on November 13, 2013, when the initial citizen’s complaint was made to HRM.

The home-owners were served with a Notice to Comply with s. 27A of the Dartmouth Land-Use Bylaw on February 4, 2014. Whichever act may be considered to have triggered the beginning of the running of the two-year limitation period in s. 370A HRM Charter , when the information was laid against the homeowners on July 16, 2014, the limitation period had not yet expired, and the prosecution was entitled to proceed.

Order [ 72 ] I allow the appeal herein. [ 73 ] Given that the homeowners maintain that they have a defence of “officially induced error” in any event, which the trial judge did not rule upon, the proper course is to remit the matter to the Provincial Court for retrial before a different trial judge- s. 686(4) (b)(

i) Criminal Code . [ 74 ] There will be no costs awarded given the unsettled jurisprudence herein. Rosinski, J.