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Provincial Offences Act - Appeals. Ontario (Natural Resources and Forestry) v. South Bruce Peninsula (Town)
In Ontario (Natural Resources and Forestry) v. South Bruce Peninsula (Town) (Ont CA, 2021) the Court of Appeal considered some intervention motions made in the course of POA appeals originally brought under the Endangered Species Act:[10] In determining motions for leave to intervene as a friend of the court pursuant to Rule 13.03(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the court will generally consider “the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties”: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (3d) 164 (C.A.), at p. 167; Foster v. West, 2021 ONCA 263, 55 R.F.L. (8th) 270, at para. 10; Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, at para. 8.
Nature of the Case and the Issues which Arise
[11] Where a criminal appeal raises no constitutional issue, or where the liberty of the subject is involved, leave to intervene is granted sparingly: see e.g., Gajewski (Re), 2020 ONCA 4, 149 O.R. (3d) 145, at para. 27; R. v. Roks, 2010 ONCA 182, 275 O.A.C. 146, at para. 11. The appellant cites this proposition to argue against granting leave. However, this appeal concerns a conviction under the POA, a quasi-criminal matter. Importantly, the appellant is not an individual facing a criminal conviction and its liberty is not at stake. The appeal does raise issues of significance to the appellant but the provincial offence at issue is, in fact, a wrong against the community as a whole, engaging a legal issue of a very public nature that is of interest to a wide segment of the community: see Gajewski (Re), at para. 34.
[12] In my view, the nature of the case and the issues which arise from the appeal overwhelmingly favour the proposed interveners on this motion. The proposed interveners seek to intervene on the interpretation of s. 10(1) of the ESA, which is a question of law. This provision has broad application and its interpretation may have profound implications for species at risk in Ontario, as well as the large number of people whose behaviour is subject to the statute. I agree with the proposed interveners that this court has recognized this issue is of public importance and transcends the dispute between the immediate parties by granting leave to appeal. Moreover, this will also be this court’s first opportunity to consider what “damage” means in s. 10(1) of the ESA, making informed contributions on the subject even more valuable. . R. v. Pahal
In R. v. Pahal (Ont CA, 2023) the Court of Appeal would apply an appellate information-correcting provision [POA s.117(1)(a.1)], here to a by-law traffic charge:[50] First, he points out that the charges in the Information refer only to the 2016 Waterloo Traffic By-law, they do not refer to the 2018 Amending By-law. He submits it was not therefore open to the Justice of the Peace, nor is it open to this court, to find him guilty of offences not charged and of which he did not have notice, the latter being a requirement of s. 11(c) of the Charter.
[51] I would not accept this argument. Immediately after the Agreed Statement of Facts was filed as an exhibit at trial and before any witnesses were called, the municipal prosecutor asked that certified copies of the 2016 Waterloo Traffic By-law and 2018 Amending By-law be filed as exhibits. The paralegal representing the respondent objected on the basis that the Information did not refer to the 2018 Amending By-law or state that the 2016 Waterloo Traffic By-law had been amended. The Justice of the Peace permitted certified copies of both by-laws to be filed. The paralegal representing the respondent did not ask at that time that the Information be quashed or request any other remedy, such as an adjournment. Nor is there any indication on the record before us that the paralegal sought any remedy later in the proceedings[6].
[52] In the circumstances, if necessary, I would order that both charges in the Information be amended under s. 117(1)(a.1) of the Provincial Offences Act, R.S.O. 1990, c. P.33[7] so that the 2016 Waterloo Traffic By-law is referred to as “as amended”. Even assuming it was necessary that the words “as amended” should have been set out in the Information, given that certified copies of both relevant by-laws were filed at trial and the respondent did not request an adjournment, I see no basis for finding that he was in any way prejudiced by the omission of the words “as amended”.
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