May 25th, 2021
In Ontario (Natural Resources and Forestry) v. South Bruce Peninsula (Town), 2021 ONCA 332, the Court of Appeal for Ontario has recently granted leave to appeal on two important issues arising from a prosecution under Ontario’s Endangered Species Act (“ESA”):
- What constitutes ‘damage’ to a species’ habitat and what evidence is the Crown required to lead to prove ‘damage’; and
- Whether the test in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, governing for the admissibility of expert evidence applies in regulatory offence prosecutions.
The facts of this case are straightforward. The Town of South Bruce Peninsula (“Town”) is responsible for maintaining Sauble Beach, a popular public beach, for the safety of its users. Sauble Beach is also the seasonal nesting home of the piping plover, a migratory shorebird designated as endangered by the ESA.
Section 10(1) of the ESA makes it an offence for any person “to damage or destroy the habitat” of over 175 species of plants and animals, including the piping plover, and applies to habitats located on private as well as public land.
In early April 2017, before the annual arrival of the piping plovers, the Town mechanically raked the beach. In late August 2017, after the piping plovers had left for the season, the Town advised the Ministry of Natural Resources and Forests (MNRF) of its plan for upcoming maintenance. The MNRF raised no objections to what was proposed and the Town carried out its maintenance. Subsequently, the MNRF alleged that the nature and extent of the Town’s maintenance in April and August exceeded what had been proposed and had damaged plover habitat.
The Town was charged and convicted of two counts of damaging piping plover habitat, contrary to s. 10(1) of the ESA. On appeal, the Ontario Court of Justice appeal judge upheld the convictions.
The Town sought leave to appeal to the Court of Appeal for Ontario pursuant to s. 139 of the Provincial Offences Act (“POA”), which provides that leave shall only be granted if “it is essential in the public interest or for the due administration of justice that leave be granted”.
Leave to Appeal Granted
In granting leave, Miller J.A. was satisfied that the questions raised by the Town with respect to the proper interpretation of ‘damage’ under the ESA was a serious question, the resolution of which “will make the legislation more determinate and thus capable of providing greater guidance to those subject to it.” Justice Miller also recognized that the ESA is of such broad application – impacting private and public landowners as well as any member of the public using such lands – that interpreting this provision is a matter of public interest and of first impression for the Court of Appeal.
Justice Miller also granted leave on the second issue, noting that the Court of Appeal has not yet applied the White Burgess test in a regulatory offence setting. He held “guidance from this court on such a fundamental question of law related to the administration justice is appropriate, and I am satisfied that leave should be granted on this basis.”
The Court of Appeal’s eventual decision in this case promises to provide important guidance in environmental and other regulatory offence prosecutions.
Guidance from the Court of Appeal as to what constitutes ‘damage’ and what evidence the Crown is required to lead to prove ‘damage’ to a species’ habitat will be of welcome assistance to all those who are regularly subject to prosecutions under the ESA. Clarification from the court on these questions, including whether there can be a presumption of ‘damage’ on the basis of any interference, and whether there must be evidence of more than trivial damage to make out the elements of the offence, will provide certainty to public and private landowners in a number of important industries (including agriculture, forestry, land development, construction, and, of course, municipal services). As well, the Court of Appeal’s determination in this case may have broader implications for prosecutions under similar statutes and regulations, such as the Environmental Protection Act, the Ontario Water Resources Act, and the Conservation Authorities Act, which have similar triggers for offences (i.e. ‘damage’, ‘harm’, ‘adverse impact’, ‘adverse effect’, etc…). While not directly applicable, guidance from the Court of Appeal on what constitutes ‘damage’ under s. 10(1) of the ESA and the evidence required to prove such damages, may offer a persuasive analogy in cases involving other environmental offences.
Additionally, the appeal decision will provide much needed guidance with respect to the proper application of the White Burgess test for the admissibility of expert evidence in regulatory offence prosecutions. How the test for admissibility of expert evidence may vary in the regulatory setting is, as Miller J.A. held, “a fundamental question of law related to the administration of justice” and will have wide application to all regulatory prosecutions, environmental or otherwise.