Mitchell v Candle Lake (Resort Village), 2021 SKCA 128

Court of Appeal for Saskatchewan Docket: CACR3416 Citation: Mitchell v Candle Lake (Resort Village) 2021 SKCA 128 Date: 2021-09-30 Between: Steven Mitchell Appellant (Appellant) And Resort Village of Candle Lake Respondent (Respondent) And Steveco Construction Ltd. Non-Party (Appellant) Before: Ottenbreit, Whitmore and Leurer JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Whitmore In concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Leurer On appeal from: CRIM 19 of 2020 (QB), Melfort Appeal heard: September 15, 2021 Counsel: Peter A.

Abrametz for the Appellant Nicole Sawchuk for the Respondent Whitmore J.A. I. INTRODUCTION [ 1 ] This matter concerns the appeal of a

summary offence ticket issued to the appellant pursuant to The

Summary Offences Procedure Act, 1990 , SS 1990-91, c S-63.1 [

Summary Offences Act ]. The appellant commenced construction of a building on his property in the Resort Village of Candle Lake [Candle Lake] without first obtaining the necessary building permit. He was found guilty and faced an $800 fine and a $320 surcharge pursuant to the ticket: Candle Lake (Resort Village) v Mitchell (17 June 2020) Nipawin, 85178257 (Sask PC).

He appealed the decision to the Court of Queen’s Bench, where his appeal was dismissed, the Court finding the ticket was valid and enforceable: Mitchell v Candle Lake (Resort Village) (11 January 2021) Melfort, CRIM 19 of 2020 (Sask QB) [ QB Decision ]. [ 2 ] The appellant applied to this Court for leave to appeal the QB Decision and was granted leave on the issue of whether the ticket was a nullity and, therefore, could not be amended. For the reasons that follow, I would dismiss the appeal. II. BACKGROUND [ 3 ] On October 29, 2019, a bylaw officer for Candle Lake issued a

summary offence ticket to the appellant. The summons ticket listed the offence under two different headings: “Bylaw No.” and “Other”. Opposite “Bylaw No.” was written “2007 Planning + Development – Development permit required”. Section 243(1) was referenced. Opposite “Other” was written “Commencement of development, prior to obtaining a development permit. In contravention of Municipal Zoning Bylaw 03/2016

section 3.3(1)”. This ticket was issued October 29, 2019. [ 4 ] On the same date, a second summons ticket was issued. Opposite the heading “Bylaw No.” was written “2007 Planning + Development Act – continuation of contravention”. Section 243(2)(

c) was referenced. Opposite the heading “Other” was written “Failure to abide by Stop Work Order dated Oct 17/2019. Continuance of contravention as observed + documented”. [ 5 ] At trial, Candle Lake applied to have the first summons ticket amended to delete all the words set out opposite “Bylaw No.” and the reference section 243(1), with the result that the only charge remaining was as described opposite the heading “Other”. In addition, Candle Lake withdrew the second summons ticket in its entirety. [ 6 ] At the commencement of the trial, the appellant admitted he had not obtained a development permit and that he had started

work prior to October 17, 2019, without a development permit. [ 7 ] The trial judge found that the appellant was constructing a building within the boundaries of Candle Lake without having obtained a development permit. He found that on October 17, 2019, the construction was ongoing.

The evidence disclosed that after the charge was laid, it was determined that the appellant was replacing a building that had previously been destroyed by fire and that if he had applied for a development permit for a replacement building having the exact same footprint as the destroyed building, the development permit would have been automatically issued.

The trial judge found that the fact that the permit would have been automatically granted did not exempt the appellant from applying for it, and thereupon convicted the appellant. [ 8 ] Upon appeal to the Court of Queen’s Bench, the appellant raised a number of grounds. As leave to appeal to this Court was granted solely on the issue of whether the summons ticket was a nullity and therefore could not be amended, I will just deal with that portion of the

summary conviction appeal judge’s decision relating to that issue. [ 9 ] In the Court of Queen’s Bench, the appellant alleged that the summons ticket was a nullity as it was issued under The Planning and Development Act, 2007 , SS 2007, c P-13.2 [ Planning Act ], and there is no provision in the

Summary Offences Act or in The

Summary Offences Procedure Regulations, 1991 , RRS c S-63.1 Reg 2 [ Regulations ], for issuing the ticket under that Act. The appellant also alleged that Candle Lake amended the summons ticket on the day of trial after previously indicating in writing that it would amend the summons ticket that was withdrawn and not the ticket that was amended. [ 10 ] The

summary conviction appeal judge stated that “[t]his assertion is legally incorrect” ( QB Decision at para 11). He observed that the Regulations permit commencement of the information by the issuance of a summons ticket. The

summary conviction appeal judge then turned to the appellant’s complaint that the summons ticket that was amended and proceeded upon was not the summons ticket that Candle Lake previously indicated would be amended. The

summary conviction appeal judge stated that the most important thing was for the appellant to understand the specific offence with which he was charged, so that he would be able to make full answer and defence to the charge. He found that the appellant was fully aware that he was being charged with a bylaw infraction for failing to obtain a development permit. The

summary conviction appeal judge went on to find the trial judge had the discretion to amend the summons ticket and did so without any prejudice to the appellant. He found no merit to the appellant’s other grounds of appeal and dismissed the appeal. [ 11 ] The appellant now appeals to this Court. As stated above, leave was granted only on the issue of whether the summons ticket was a nullity and therefore could not be amended. III.

JURISDICTION AND STANDARD OF REVIEW [ 12 ] Sections 822 and 839(1) of the Criminal Code set out the right of the appellant to bring this appeal. [ 13 ] Leave was granted on the question of law stated above. The applicable standard of review, therefore, is that of correctness: Housen v Nikolaisen , 2002 SCC 33 , [2002] 2 SCR 235. IV. ISSUE [ 14 ] The appellant frames the issue as follows: “Did the Learned Trial Judge err in permitting the Respondent Village to amend the ticket if it was a nullity?” The question before this Court, of course, is whether the

summary conviction appeal judge erred in finding the trial judge did not err in permitting the amendment of the summons ticket. This will involve an analysis of the trial judge’s findings and conclusions. V. ANALYSIS [ 15 ] The appellant first argues that, because the Planning Act is not listed under s. 5 of the Regulations as

an Act under which issuance of the summons ticket is permitted, the ticket is a legal impossibility. [ 16 ] Candle Lake concedes that if the Planning Act were the only Act or bylaw disclosed on the original summons ticket, the ticket would be invalid as the Act itself is not contained in the Regulations as one of the Acts under which

summary offence tickets can be issued. This, however, is not the case. On the ticket, “Municipal Zoning Bylaw 03/2016

section 3.3(1)” is also listed. The

summary conviction appeal judge held as follows: “ The

Summary Offences Procedure Regulations, 1991 , RRS c S-63.1 Reg 2, s. 5 (

s) states: ‘for which proceedings may be commenced … by the issuance of a summons ticket: … (

s) bylaws of a municipality’. This is a complete answer for the first part of this argument” (at para 11). [ 17 ] In other words, the Regulations specifically permit the commencement of proceedings by issuing a ticket in the case of a charge relating to the bylaws of a municipality. This is a complete answer because the Zoning Bylaw itself is in conformity with and is empowered by the Planning Act , pursuant to s. 1.3 of the Zoning Bylaw .

Therefore, although the independent charge under s. 243(1) of the Planning Act was deleted from the summons ticket, its original inclusion in the summons ticket does not somehow invalidate the entire ticket. Although the Planning Act is not included in the lists of Acts under the Regulations , the fact that it is

an Act that empowers and governs the Zoning Bylaw places it within the boundaries of the Regulations under “bylaws of a municipality” ( s. 5 (s)). [ 18 ] The summons ticket states that the appellant contravened the Zoning Bylaw , s. 3.3(1), which reads as follows: 3.3 Development Permit 1. Except where a particular development is specifically exempted by

section 3.4 of this Bylaw, no person shall undertake a development or commence a use without a development permit first being obtained.

The summons ticket then goes on to describe the offence as “Commencement of development, prior to obtaining a development permit”. This description is much more precise than the charge under the Planning Act that was originally included on the summons ticket. [ 19 ] Next, the appellant takes issue with the fact that once the charge relating to the Planning Act was deleted from the summons ticket, the remaining charge had no penalty attached to it, as required by s. 4(1) of the

Summary Offences Act . [ 20 ] In my opinion, this assertion is not correct. Section 4(1) states as follows: Procedure generally 4

(1) Subject to this Act, any other Act or any regulation, proceedings to enforce

an Act, regulation or bylaw by fine, penalty or imprisonment may be brought summarily before a justice under the

summary conviction provisions of the Criminal Code . [ 21 ]

Section 3.12(2) of the Zoning Bylaw states that “[a]ny person who violates this Bylaw is guilty of an offence and liable on

summary conviction to the penalties set forth in

section 243 of the [ Planning ] Act ”. [ 22 ] Section 243(2) of the Planning Act states the following: Offences and penalties 243

(2) Every person who contravenes subsection (1) is guilty of an offence and is liable on

summary conviction to: (

a) in the case of an individual, a fine of not more than $10,000, to imprisonment for not more than one year or to both; (

b) in the case of a corporation, a fine of not more than $25,000; and (

c) in the case of a continuing offence, to a maximum daily fine of not more than $2,500 per day or part of a day. This

section of the Planning Act clearly sets out the penalties for contravention of the Zoning Bylaw . [ 23 ] The deletion of s. 243(1) of the Planning Act from the summons ticket does not invalidate the fact that the appellant is still facing a fine under the Planning Act due to his contravention of the Zoning Bylaw . Both s. 243(1) of the Planning Act and s. 3.12(2) of the Zoning Bylaw attach penalties pursuant to s. 243(2) of the Planning Act . [ 24 ] Further, s. 6 of the

Summary Offences Act states as follows: Use of ticket authorized 6

(3) The use on a

summary offence ticket of a word, figure or expression or any combination of them authorized by a regulation to designate an offence under

an Act, regulation or bylaw is sufficient for all purposes to describe the designated offence.

(4) Failure to complete any information required in a

summary offence ticket does not invalidate the ticket or any part of it if: (

a) the defendant is identified with reasonable clarity; (

b) the offence with which the defendant is charged is specified in accordance with this Act and the regulations; and (

c) the date on which the offence is alleged to have occurred is specified. [ 25 ] A review of this

section makes it clear that the fact that the penalty under s. 243(2) of the Planning Act that attaches to the Zoning Bylaw charge was not specifically included on the ticket does not invalidate the ticket itself. [ 26 ] Although there may be confusion about why the charge under s. 243(1) of the Planning Act was originally included on the ticket, the summons ticket complies with the requirements for the form of tickets under the

Summary Offences Act and the Regulations , and it is very clear what charge the appellant faced. [ 27 ] It was not possible to bring the charge against the appellant under the provision of the Planning Act alone, as Candle Lake properly conceded. Therefore, Candle Lake applied to amend the summons ticket and remove that portion, because, as a standalone charge, it was not valid. This did not mean, however, that the penalty under s. 243(2) of the Planning Act no longer attached to the Zoning Bylaw charge that remained on the ticket.

I see no reason why the summons ticket would be invalid or a nullity from the outset. I see no error on the part of the trial judge in amending the summons ticket, and the

summary conviction appeal judge was correct in his analysis and conclusion of the trial judge’s decision in that regard. [ 28 ] In his factum, the appellant also argues that “[a] valid ticket cannot be brought under two laws from two jurisdictions: it cannot be brought under one law but then have an alternate law under the heading ‘Other’ to fall back on if the initial law charged is a nullity and impossible to proceed upon”. [ 29 ] In making this assertion, the appellant cites no authority. He offers only s. 12 of the Regulations , which provides as follows: Completion of ticket 12

(1) A peace officer who issues a ticket with respect to an offence shall: (

a) in the spaces provided on the ticket, give: (

i) the

section number of the Act, regulation or bylaw pursuant to which the charge is made;

(ii) a brief description in words of the offence; and (iii) the name of the person to be charged and other particulars indicated on the ticket; and (

b) deliver to the defendant the summons or offence notice, as the case may require. [ 30 ] A review of the summons ticket demonstrates that it complied with each of these elements. The fact that the Planning Act was listed before the Zoning Bylaw provision, in my opinion, does not violate s. 12 of the Regulations . [ 31 ] The fact that two different laws were mentioned in the ticket did not invalidate the ticket. The appellant was not being doubly punished. He faces an $800 fine for contravention of the Zoning Bylaw , pursuant to the penalties set out in s. 243(2) of the Planning Act .

There was nothing on the ticket that indicated the appellant would be punished for the two charges separately. VI. CONCLUSION [ 32 ] There was no error on the part of the

summary conviction appeal judge in concluding that the ticket was not a nullity and was valid, and that the trial judge did not err in permitting the ticket to be amended. The remaining charge on the ticket was articulated clearly, the

section of the Zoning Bylaw was included, and the appellant’s name was indicated, as required by s. 12 of the Regulations . Additionally, although the penalty for contravention of the Zoning Bylaw was not specifically stated on the ticket, the Zoning Bylaw itself sets out that the penalty that attaches to a breach is contained in the Planning Act . Therefore, the amendment made to the ticket was entirely lawful. I would dismiss this appeal. “Whitmore J.A.” Whitmore J.A. I concur. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Leurer J.A.” Leurer J.A.