



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ontario Corporation 1796926, 2016 ONCA 612

DATE: 20160804

DOCKET: M46522 (M46479)

Gillese J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Responding Party

and

Ontario Corporation 1796926 c.o.b. Ontario
    Outdoor Recreational Alliance

Moving Party

Jonathan M. Poitras, for the moving party (by
    teleconference)

Sunny Zhai, for the responding party

Heard: July 29, 2016

ENDORSEMENT

[1]

Ontario Corporation 1796926 c.o.b. as Ontario Outdoor Recreational
    Alliance (OntORA) was convicted, by a justice of the peace, of offences under
    s. 28 of the
Public Lands Act
, R.S.O. 1990, c. P.43

(the 
PLA
)
    and s. 10(1)(a) of the
Fish and Wildlife Conservation Act, 1997,
S.O.
    1997, c. 41 (the 
FWCA
) .

[2]

OntORA unsuccessfully appealed the convictions.

[3]

OntORA wishes to now appeal to this court but cannot do so without
    leave.  Accordingly, it brings this motion for leave to appeal.

OVERVIEW

[4]

The following facts are drawn from the agreed statement of facts
    entered at trial, on the consent of the parties.

[5]

OntORA is an organization of concerned outdoors people from across
    Ontario who joined together because they believed the Ministry of Natural
    Resources and Forestry (the Ministry) has established abusive policies that
    set aside vast areas of Crown land and lakes for the exclusive use of paying
    tourists.

[6]

During the summer of 2011, OntORA organized a public protest to be held
    on August 20, 2011, in Foleyet.  The focus of the protest was to be the
    re-opening of the road/trail to Oswald Lake (the Lake), a designated tourism
    lake.  A tourist camp operates on the Lake, catering to fly-in tourists who
    seek a remote fishing experience.

[7]

In the 1970s and 1980s, roads were built west of the Lake to facilitate
    forestry operations.  Over the following thirty years, there were occasional
    problems with unauthorized roads built to the Lake.  When these roads came to
    the attention of the Ministry, signs were installed barring their use for
    motorized access to the Lake.  A berm was installed on one part of the
    road/trail in question to try and restrict traffic.  It naturally grew in over
    the years such that by 2010, the road/trail was used only by those travelling
    on foot or by ATVs.

[8]

Further, in 2010, Ministry staff decommissioned the last 400 meters of
    the road/trail by cutting trees and laying them across it.

[9]

The road/trail is located on Crown land under the
PLA
.

[10]

As mentioned, the focus of the public protest organised by OntORA for
    August 2011 was the re-opening of the road/trail.  The intention was to meet in
    Foleyet and then drive to the road/trail and clear it.

[11]

On August 20, 2011  the date of the protest  there were four Ministry signs
    prohibiting the use of vehicles to gain access to the Lake, two of which were located
    on the road/trail.

[12]

Following the public protest in Foleyet, a group of 20-25 men arrived at
    the road/trail as part of the protest.  For the most part, these men travelled
    on ATVs.  Using chainsaws, they removed the trees the Ministry had laid across
    the road/trail.  Some of the men then proceeded to the Lake where they
    symbolically cast fishing lines in the water.

[13]

As a result of these actions, OntORA was charged with occupying or using
    public lands or a road in contravention of a notice given under the
PLA
thereby
    committing an offence pursuant to s. 28(3) of the
PLA
.  It was also
    charged with trespass to property for the purpose of fishing, contrary to s. 10(1)(a)
    of the
FWCA
.

[14]

At the relevant times, ss. 28(1) and (3) of the
PLA
read as
    follows:

28.
(1)
The Ministry may give notice
    prohibiting, controlling or governing,

(a) the possession, occupation or any use or uses
    of public lands or roads under the jurisdiction of the Minister; or

(b) the parking of vehicles on public lands or the
    roads described in clause (a).
[1]

(3)  A person is guilty of an offence if the person
    possesses, occupies or uses any public lands or a road in contravention of a
    notice given under subsection (1) or parks a vehicle on public lands or a road
    in contravention of any such notice.

[15]

On September 10, 2014, Justice of the Peace T.A. Hodgins convicted OntORA
    of the offences.  Among other things, he found that the portion of the road/trail
    btween the berm and the Lake (which OntORA had used to access the Lake) was no
    longer a road but, in fact, a trail.  He made this finding based on the agreed
    statement of facts, the testimony of witnesses, and the videos of the trail. 
    He found, given the berm preventing vehicular access and the growth of natural
    vegetation, that the trail/road could no longer be considered a road at the
    time of the offences.

[16]

OntORA appealed the convictions.

[17]

On August 4, 2015, Justice Boucher (the Appeal Court Judge) dismissed the
    appeal and upheld the convictions.

[18]

If granted leave to appeal, OntORA will argue that the lower court erred
    in finding that:

1.

the road/trail
    which OntORA used to access the Lake was not a road; and

2.

the Ministry
    could close the road or limit the publics right to access the road under s. 28
    of the
PLA
.

[19]

For the reasons that follow, leave is refused and the motion dismissed.

THE TEST FOR LEAVE

[20]

To obtain leave to appeal, OntORA must meet the requirements set out in
    ss. 131(1) and (2) of the
Provincial Offences Act
, R.S.O. 1990, c. P.33.
Sections 131(1) and (2) read as follows:

131. (1) A defendant or the prosecutor or the
    Attorney General by way of intervention may appeal from the judgment of the
    court to the Court of Appeal, with leave of a judge of the Court of Appeal on
    special grounds, upon any question of law alone or as to sentence.

(2) No leave to appeal shall be granted under
    subsection (1) unless the judge of the Court of Appeal considers that in the
    particular circumstances of the case it is essential in the public interest or
    for the due administration of justice that leave be granted.

[21]

On a plain reading of ss. 131(1) and (2), the test for granting leave is
    stringent.  Thus, leave should be granted only sparingly.  Section 131(1)
    restricts leave to questions of law alone or as to sentence.  (Sentence is not
    in play in this matter so will not be referred to again.)  Further, s. 131(2)
    dictates that leave shall not be granted unless the court considers that it is
    essential in the public interest or for the due administration of justice.

ANALYSIS

The First Proposed Ground
    of Appeal

[22]

The first proposed ground of appeal challenges the finding of the lower
    court that a part of the road/trail which OntORA had used to access the Lake
    was no longer a road but, instead, was a trail.  Arguably, this finding is a
    question of fact alone but, at its highest, it is a question of mixed fact and
    law.

[23]

As noted above, s. 131(1) limits leave to being granted on questions of
    law alone.  The first proposed ground of appeal is not a question of law alone. 
    Consequently, leave must be refused on the first proposed ground of appeal.

[24]

In any event, this ground of appeal is of no moment.  Whether the signs
    were posted on a road or a trail does not matter because s. 28(1) applies to
    public lands as well as roads.  There can be no question that the
    road/trail is located on public lands.  The agreed statement of facts
    stipulates that the road/trail is located on Crown land under the
PLA
.

The Second Proposed Ground
    of Appeal


[25]

The second proposed ground of appeal challenges the lower courts
    determination that the Ministry had the right to close the road or limit the
    publics right to access it under s. 28 of the
PLA
.  If leave is
    granted, OntORA would argue that the Ministry did not have that power.  It
    would contend that the public was granted a right to public passage over the road
    and that those rights remain unless the road is closed under s. 52 of the
PLA
. 
    OntORA says that the evidence is clear that the proper process was not
    followed.

[26]

Again, the second proposed ground of appeal does not appear to raise a
    question of law alone.  However, and in any event, to the extent that it raises
    a question of statutory interpretation, in my view, it is not a question whose
    resolution is essential in the public interest or for the due administration of
    justice.

[27]

In
Ontario (Labour) v. Enbridge Gas Distribution Inc.
, 2011 ONCA
    13, 328 D.L.R. (4th) 343, Watt J.A. explained, at para. 36:

Grounds of appeal that raise issues of statutory interpretation
    often have application beyond the factual idiosyncrasies of individual cases.
    But simply phrasing the proposed ground of appeal as a question of statutory
    interpretation is not an open sesame to leave to appeal. The subject-matter of
    the statute, as well as the nature and extent of its influence on our daily
    activities, is of importance. The influence of the statute must be such that
    its interpretation rises to the threshold of essential in the public interest
    or essentialfor the due administration of justice. [Citation omitted.]

[28]

This reasoning applies in the present case.

[29]

OntORAs conviction under s. 28 of the
PLA
was the result of a straightforward
    application of s. 28 that was not dependent on s. 52.  Section 28(1) empowered
    the Ministry to give notice prohibiting, controlling or governing the
    occupation or use of public lands or roads.  That notice was given in the form
    of posted signs on the road/trail.  The road/trail was public lands.  OntORA
    occupied and/or used the road/trail in contravention of the notice.  Therefore,
    it was guilty of an offence under s. 28(3).

[30]

On the record before me, the proposed appeal does not raise any issue
    significant enough that granting leave is essential in the public interest or
    for the due administration of justice, as required by s. 131.

DISPOSITION

[31]

For these reasons, the motion for leave to appeal is dismissed.


E.E.
    Gillese J.A.





[1]
The Appeal Court Judge erroneously quoted a prior version of s. 28(1) in his
    reasons.


