



COURT OF APPEAL FOR ONTARIO

CITATION: Halton Region Conservation Authority v. Hanna, 2018
    ONCA 476

DATE: 20180522

DOCKET: C58113

MacFarland, Watt and Paciocco JJ.A.

BETWEEN

Halton Region Conservation Authority

Appellant (Respondent)

and

J. Michael Hanna and Susan Carol Hanna

Respondents (Appellants)

Brian H. Greenspan, Robin McKechney and Peter Hamm, for
    the appellants

Kenneth Jull and Jonathan Nehmetallah, for the respondent

Heard and released orally: May 17, 2018

On appeal from the judgment of Justice Alan D. Cooper, of
    the Ontario Court of Justice, dated November 19, 2012, allowing a Crown appeal
    from the sentences imposed on January 24, 2011 by Justice of the Peace Lina M.
    Mills of the Ontario Court of Justice.

REASONS
    FOR DECISION

[1]

The appellants appeal, with leave of a single judge, from the decision
    of a judge of the Ontario Court of Justice sitting as a Provincial Offences
    Appeal Court (POAC) varying the sentence imposed by a justice of the peace in
    the Provincial Offences Court on pleas of guilty to two counts of breaching a
    regulation made under s. 28(1) of the
Conservation Authorities Act,
R.S.O.
    1990, c. C.27, thereby committing an offence under s. 28(16) of that
Act
.

[2]

At trial, after a contested sentencing hearing that lasted over two
    weeks, the presiding justice ordered that each appellant:

i.

pay a fine of $5,000; and

ii.

comply with the terms of a probation order for a period of two years among
    which was a requirement that they reconstruct a seawall on their property at
    their expense, by a specified date.

[3]

The Conservation Authority appealed the sentence to the POAC. The
    principal ground of appeal was that the trial justice erred in failing to order
    the now appellants to remove, at their expense, the addition they had made to
    their home. As it had at trial, there unsuccessfully, the Authority sought the
    removal order as a term of the probation order on the basis that the now
    appellants conduct amounted to a flagrant and deliberate breach of the
    regulation.

[4]

The judge of the POAC allowed the appeal by the Conservation Authority,
    set aside the sentence imposed at trial, and ordered that the fines be remitted
    to the now appellants; that the probation order requiring reconstruction of the
    seawall remain in effect; and that the now appellants be required to remove the
    addition to their home at their expense before a certain date.

[5]

In this court, the appellants seek reinstatement of the sentence imposed
    at trial. Reduced to its essence, they say that the judge of the POAC exceeded
    the scope of permissible appellate review by:

i.

reversing factual findings made by the trial court in the absence of any
    misapprehensions of evidence or palpable and overriding errors of fact;

ii.

reweighed the evidence adduced before the sentencing judge and
    substituted his own findings for those of the trial court; and

iii.

disregarded mitigating factors relied upon by the trial court.

[6]

The authority of the POAC on appeals from sentence under s. 122(1) of
    the
POA
is, with two exceptions not material here, identical to that
    in s. 687(1) of the
Criminal Code
. It is well established that
    sentences imposed by trial courts are entitled to and accorded substantial
    deference on appellate review. An appellate court is entitled to interfere with
    the sentence imposed at trial only where the trial court:

i.

errs in principle;

ii.

fails to consider a relevant factor; or

iii.

errs in considering an aggravating or mitigating factor

that has an impact on the sentence imposed, or imposes
    a sentence that is demonstrably unfit.

[7]

Critical to the Conservation Authoritys request for a removal order as
    part of the sentencing disposition was its submission that the conduct of the
    appellants was a flagrant and deliberate breach of the governing Regulations.
    As an aggravating factor on sentence, it was incumbent on the Authority to
    prove this allegation on the evidence adduced at the hearing beyond a
    reasonable doubt. The trial court made a specific finding of fact, a finding
    based on the whole of the evidence adduced on the sentencing hearing, and one
    that involved an assessment and weighing of controverted evidence and findings
    of credibility, that the appellants conduct did
not
constitute a
    flagrant and deliberate breach of the Regulations.

[8]

The judge of the POAC found that:

i.

the Conservation Authority had proven the disputed aggravating factor,
    that is to say, the flagrant and deliberate breach of the Regulations, beyond a
    reasonable doubt; and

ii.

the nature of the breach warranted a removal order.

[9]

It was not open to the judge of the POAC to simply substitute his view
    of the nature of the appellants breach of the Regulation for that of the trial
    court.

[10]

Findings
    of fact are the bedrock of sentencing proceedings. They are critical to a
    determination of the circumstances that may aggravate or mitigate a sentence.
    In many instances, as here, findings of fact that determine whether an
    aggravating or mitigating circumstance will have a say in the ultimate
    sentencing decision will be made on conflicting evidence. And findings of fact
    are the province of the sentencing judge who is an ear and eyewitness to the
    conflicting evidence. At one remove, a reviewing court is not entitled, nor
    should it be, to interfere with findings of fact made at trial in the absence
    of palpable and overriding error.

[11]

In
    this case, the judge of the POAC does not identify any palpable and overriding
    error in the trial courts finding on the critical issue of moral
    blameworthiness. It follows that the appeal judge was
not
entitled to
    interfere with that finding, much less to substitute a contrary finding funded
    in part by impermissible speculation about one of the appellants knowledge of
    applicable residential building restrictions.

[12]

In
    the result, we are satisfied that the appeal judges decision is flawed by
    fundamental errors and cannot stand. The appeal is allowed, the decision of the
    judge of the POAC is set aside and the decision of the POC restored to this
    extent: each appellant will pay a fine of $5,000. In light of the fresh evidence
    that the terms of the probation order, including reconstruction of the seawall,
    have been satisfied, we see no need to make any further orders.

J. MacFarland J.A.

David Watt J.A.

David M. Paciocco J.A.


