



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Geil, 2013
    ONCA 457

DATE: 20130319

DOCKET: M42088

Lauwers J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Responding Party

and

Jason John Geil, Janet Ann Bratton, Ontario
    Corporation #1410025 c.o.b. as Geil Style Enterprises Inc.

Moving Parties

Terrance G. Green and Mariah Soper, for the moving
    parties

Steven OMelia, for the responding party

Heard: March 4, 2013

On motion for leave to appeal the judgment of Justice
    Gary F. Hearn of the Ontario Court of Justice dated November 28, 2012,
    dismissing the appeal from the convictions entered on January 26, 2011 and the
    sentences imposed on September 16, 2011 by Justice of the Peace
Zeljana
Radulovic.

ENDORSEMENT

[1]

The applicants Jason John Geil, Janet Ann Bratton, Ontario Corporation
    #1410025 operating as Geil Style Enterprises Inc. built a farm roadway on land
    they owned to provide cultivation access to a section of their land. They did
    so without securing the permission of Grand River Conservation Authority. They
    were convicted of breaching a regulation under s. 28(16) of the
Conservation
    Authorities Act
, R.S.O., 1990, c. C.27, as amended. The conviction was
    upheld.

[2]

The applicants seek leave to appeal under s. 131 of the
Provincial
    Offences Act
, R.S.O. 1990, c. P.33, as amended.

[3]

The principles for granting leave to appeal leave under s. 131 of the
Provincial
    Offences Act
are set out in
Ontario (Labour) v. Enbridge Gas
    Distribution Inc.
, 2011 ONCA 13, per Watt J.A. at paras. 33-35. There must
    be question of law alone, the resolution of which may have an impact on the
    jurisprudence in a way that is of interest to the public at large, and that
    resolution must be essential in the public interest, in the sense of material,
    important, or for the due administration of justice:
R. v. Krukowski
[1991] O.J. No. 255 per Lacourciere J.A. at para 13.  Further, the leave court
    may advert to the merits:
Ontario (Labour) v. Enbridge Gas Distribution
    Inc.
at para. 38.

[4]

The legal issue that the applicants raised in argument can be distilled:
    Does the Provincial Policy Statement enacted by the Province under the
Planning
    Act
, R.S.O. 1990, c. P.13
immunize
    farmers from prosecution under the
Conservation Authorities Act
by a
    Conservation Authority where the offence relates to farming activities, in this
    case constructing a road incidental thereto?

[5]

The applicants concede that the proper application of the Provincial
    Policy Statement was not argued before the trial justice. The applicants
    complain that trial counsel was incompetent in failing to do so. The issue was
    raised before the appeal court but was not referenced in the reasons for
    decision. The applicants complain that in failing to address the argument, the
    appeal courts reasons do not comply with
R. v. Sheppard
, [2002] 1
    S.C.R. 869.

[6]

The applicants submit that the issue is of importance to farmers
    generally. They also point to another decision of a justice of the peace which they
    submit conflicts with the trial decision in this case. In
R. v. Minas,
(Justice of the Peace Ann Rohan, unreported, dated January 21, 2009), as in
    this case, the land was in agricultural use and a road was built without a
    permit in an area designated as a wetland subject to regulation by the
    Conservation Authority.

[7]

There was some evidence in
Minas
that a laneway had existed on
    the land in the location of the road. In the course of his reasons for
    decision, the trial justice in
Minas

said:

The 2005 Ontario Provincial Policy stated that wetland
    protection is not to limit agricultural use. This is Mr. Thompsons evidence
    (an expert land use planner), that the defendant did not require a permit as
    agricultural activities are exempt as it relates to wetland protection under
    the
Planning Act
.  It is this courts opinion that a roadway existed
    for agricultural purposes on this property and may have been overgrown by lack
    of use over the years. Quite frankly, the matter before the court is whether
    or not the defendants should have access to viable farmland over an improved
    historic roadway for agricultural purposes; it is the opinion of this court,
    after hearing all the evidence, examining all the exhibitsthat the defendants
    are not guilty of these offences.

[8]

The applicants claim that there was such a laneway here too, which would
    bring the case even closer to
Minas
.
But the appeal judge noted
    at para 31 and 33 of his decision:

[31]    The Justice of the Peace did not accept the evidence of
    Stewart Geil that a laneway always had existed through the wetland and that it
    had not changed much except that some gravel had been put on it.  In coming to
    that conclusion Her Worship considered the very evidence of the Applicant Jason
    Geil who admitted that he had been cleaning the area through the wetland and
    had made the laneway wider and longer by cleaning bush, trimming branches and
    putting gravel on the roadway.

[33]    There is nothing before the court to indicate that the
    photo now sought to be introduced as new evidence was not available at the time
    of trial.  Further and in any event it is clear that upon viewing the
    photograph it does not assist the Applicants in any productive way as an
    existing roadway is not readily apparent.  Certainly not or near to the extent
    of the roadway illustrated on Exhibit #1 to the appeal which is an aerial
    photograph showing the current roadway as of July 13, 2012.

In my view,
Minas

is accordingly not a
    conflicting decision.

[9]

In relation to leave to appeal leave under s. 131 of the
Provincial
    Offences Act,
t
he
    respondent agrees that the interpretation of the Provincial Policy Statement
    and its application to farming raises a question of law. The respondent takes
    the simple position, however, that the argument that the applicants as farmers
    are immunized from prosecution by virtue of the Provincial Policy Statement
    simply has no merit.

[10]

The
    respondent submits that the Provincial Policy Statement gets its status from s.
    3 (5) of the
Planning Act
:

(5)
A decision of
    the council of a municipality, a local board, a planning board, a minister of
    the Crown and a ministry, board, commission or agency of the government,
    including the Municipal Board, in respect of the exercise of any authority that
    affects a planning matter,

(a) shall be
    consistent with the policy statements issued under subsection (1) that are in
    effect on the date of the decision; and

(b) shall conform with
    the provincial plans that are in effect on that date, or shall not conflict
    with them, as the case may be.

[11]

The
    respondent submits that the subsection plainly provides that the duty of the
    Conservation Authority to comply with the Provincial Policy Statement is
    limited, as the
Planning Act
states, to the exercise of any authority
    that affects a planning matter. The Provincial Policy Statement has no effect
    on the ordinary exercise of Conservation Authoritys jurisdiction under the
Conservation
    Act
in regulating wetlands. This would also explain why trial counsel, who
    was well-versed in the law having previously acted for the Conservation
    Authority, did not raise the issue; failing to do so was, the respondent
    submits, not an instance of incompetence.

[12]

The
    applicants raised three complaints in the factum, being whether the appeal
    judge provided sufficient reasons for judgment, whether he properly weighed the
    evidence that was brought before him and whether he properly applied the law to
    the evidence.  In the circumstances of this case, none of these is capable of
    meeting the test for leave under s. 131 of the
Provincial Offences Act
.
    I reach the same conclusion on the proposed legal question; the position to be
    argued by the applicants has no merit.

[13]

The
    motion for leave to appeal is dismissed.

P. Lauwers J.A.


