505-36-000093-924

C A N A D A Superior Court

Province of Québec (Criminal Division)

District of Longueuil

No. 505-36-000093-924 MONTREAL, 3rd February, 1995

PRESIDING :

The Honourable BENJAMIN J. GREENBERG, J.S.C.

DAME EUGENIA ANDERS ZIEBA

Appelant

PROCUREUR GÉNÉRAL DE LA PROVINCE DE QUÉBEC

Respondent

J U D G M E N T

This Appeal relates to the Judgment rendered at Longueuil by Judge Paul-A. Bélanger of the Quebec Court, dated October 30th, 1992 and deposited by him that day in the file in first instance, in open Court and in the presence of the attorneys of the parties.

The Appelant before us, Dame Eugenia Anders Zieba, had been charged with two counts, as follows:

Le ou vers le 29 juin 1990, à St-Philippe, district (de) Longueuil, en tant que propriétaire, a utilisé un terrain comme dépotoir en deçà d'une distance de 150 mètres d'un chemin que le ministre des Transports entretien, à savoir le boulevard Monette, en contravention à l'article 15 de la Loi sur la Voirie (L.R.Q., chapitre V-8);

2e chef: Le ou vers le 30 juillet, 1991, à St-Philippe, district (de) Longueuil, en tant que propriétaire, a utilisé un terrain comme dépotoir en deçà d'une distance de 150 mètres d'un chemin que le ministre des Transports entretien, à savoir le boulevard Monette, en contravention à l'article 15 de la Loi sur la Voirie (L.R.Q., chapitre V-8)."

After declaring her guilty as charged on both counts for the reasons elaborated in his written Judgment, the first Judge, séance tenante, imposed fines of $50 with respect to the first count and $100 on the second count. Moreover, in virtue of Section 15.2 of the Roads Act, R.S.Q. 1977, c. V-8 as amended by S.Q. 1982, c. 49 (hereinafter "the New Law"), he issued an Order of Removal which is recorded as follows in the Procès-verbal of the October 30th, 1992 Court hearing:

"En vertu de l'article 15.02, la Cour ordonne que tous les objets de rebut sur le terrain faisant l'objet de la plainte soient enlevés dans un délai de 8 jours de ce jour.

À défaut de ce faire la Cour autorise le Ministère et la Poursuite à faire enlever les rebut et les objets de rebut et cela aux frais de la contrevenante, tous les objets en deça de 150 mètes du chemin en question."

Although all the Court documentation which appears in the Superior Court record herein (including the Notice issued by the Greffier-Adjoint on November 6th, 1992 and the eleven procès-verbaux covering the ten pro-forma hearings which took place between December 4th, 1992, and June 1994 inclusive and the pleading of the Appeal before the undersigned on November 11th, 1994) refers to "Appel de Jugement", there arose before this Court at the hearing of the Appeal and then in the two letters dated November 11th, 1994 and November 14th, 1994 received by the undersigned, respectively, from counsel for the Appelant and for the Respondent, the issue as to exactly what was in appeal here.

Sections 266(1), 267 and 272 C.P.P. decree:

"266(1): In this chapter, unless the context indicates otherwise, "judgment rendered in first instance" means,

(1) a judgment of acquittal or conviction of a defendant and the sentence imposed or any order made or denied at the time of the judgment;

267: An appeal from a judgment rendered in first instance may contemplate only the sentence or an order or only the conviction or aquittal.

Where the appeal contemplates both the sentence or an order and the conviction or, as the case may be, the acquittal, it must be brought by way of the same notice of appeal.

272: An appeal is brought by filing a notice of appeal in the office the Superior Court.

The notice must indicate the grounds for the appeal and the conclusions sought and be drafted concisely and precisely in accordance with the rules of practice. Proof of service on the respondent must be attached."

In the present instance there were: the Judgment finding the defendant guilty on both counts, the two fines and the Order of Removal. Pursuant to the above-cited Sections of the C.P.P., Mrs. Zieba had the right of appeal the Judgement and /or the fines and/or the Removal Order. If she wished to appeal more than one of those elements, in the words of Section 267 C.P.P. " ... it must be brought by way of the same notice of appeal".

Because of the somewhat ambiguous wording in the Avis d'Appel relating to the conclusions sought, where we find:

"Que l'Appelante demande à cette Honorable Cour de renverser le jugement de première instance et d'acquitter l'Appelante sur les deux (2) chefs de la dénonciation et d'annuler en conséquence l'ordonnance d'enlèvement." (Emphasis added by counsel for respondent.),

the latter argued that what we have here is solely and strictly an Appeal against the finding of guilt and thus, if this Court decides that the Judgment in first instance was well-founded, we have no jurisdiction to put into question or deal with the Removal Order.

On the other hand, counsel for the Appelant maintained that his client's Appeal herein is also against the Remover Order. Consequently, he submitted that even if we find the Judgment finding his client guilty to be well-founded, we are required and empowered to enquire into the deal with the Removal Order, its ambit, effects and application.

Although at the hearing of the appeal we expressed skepticism about that pretension by Appelant's counsel, in further considering this issue during our délibéré, we noted that the Avis d'Appel declared as follows in its opening paragraph:

"L'Appelante, Dame Eugenia Anders Zieba, porte en appel la Déclaration de culpabilité et l'ordonnance d'enlèvement rendues le 30 octobre 1992 par l'Honorable Juge Paul A. Bélanger de la Cour du Québec, Chambre criminelle, District de Longueuil, dans le dossier no: 505-27-011646-917. Ledit jugement a déclaré l'Appelante coupable de deux (2) chefs d'accusation protés en vertu de la Section 15 de la Loi sur la Voirie (LRQ chapitre V-8). Ledit jugement a condamné l'Appelante à $50.00 d'amende sur le premier chef et $100.00 d'amende sur le deuxième et a aussi ordonné l'enlèvement des objets dans les huit (8) jours en vertu de la Section 15.2 de la Loi sur la Voirie." (Emphasis added by us.)

In the face of the foregoing and the principle that any ambiguity must be interpreted in favour of an accused, our conclusion is that, although the fines component of the sentence is not appealed from herein, in addition to the Judgment finding guilty the Appeal here is also directed against the Removal Order, which falls clearly within the ambit of the wording "or any order made .... at the time of the judgment" found in Section 266(1) C.P.P.

This Court will therefore direct itself first to the Appeal of the Judgment and, if necessary, thereafter to the Appeal against the Removal Order.

Before embarking upon the analysis of the issues raised in the present Appeal, it is important to recall that since a few years now, appeals to this Court relating to Quebec penal matters are no longer by way of a "de novo" hearing, as was the case under the former Summary Convictions Act. Section 281(1) C.P.P. stipulates:

" The hearing of an appeal shall be based on the record prepared in accordance with the rules of practice.

Notwithstanding the foregoing, on the application of one of the parties, the appeal may be heard by way of a new hearing where, because of the state of the record or for any other cause, the judge considers it preferable in the interests of justice to hear the appeal in the form of a new hearing."

Hence, when a Judge of the Superior Court of Quebec sits in appeal pursuant to Chapter XI of the C.P.P. he (she) sits as does the Court of Appeal of Quebec. It is consequently not our role to retry the case or "second guess" the first Judge in his (her) findings of fact or evaluation of the credibility of the witnesses, unless we find that such findings or evaluation were manifestly unreasonable or not supported by the evidence. We must not simply substitute our discretion for that exercised by the first Judge on those issues.

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Accordingly, we must firstly ask ourselves: Did the first Judge commit an error in law? If not, that ends that issue. However, even where we find that he (she) did commit an error in law, the Appeal is not granted on that issue unless, paraphrasing the wording of Section 286, 3rd paragraph C.P.P., the prosecutor fails to show that, notwithstanding that error, the Judgment would have been the same . Where there has been an error in law and the prosecutor fails to demonstrate the foregoing, the Appeal is maintained.

Hence, if this Court finds that there was no error in law in the first Judgment or, even if there was such an error, if we find that the prosecutor has demonstrated that, notwithstanding same, the Judgment would have been the same, the Appeal is not maintained on the issue of law and we then turn to the facts of the case.

Once on that terrain, this Court must not interfere with the first Judge's findings of fact or appreciation of the credibility of the witnesses, unless we conclude that the same were manifestly unreasonable or not supported by the evidence.

Now, in regard to the Judgment finding the Appelant guilty on both counts, it is helpful to begin by citing in extenso the relevant sections of the New Law, R.S.Q. 1977, c. V-8, as amended by S.Q. 1982, c. 49.

That last-mentioned statute was assented to on December 16th, 1982 and Section 5 of same, which enacted the new version of Sections 14 to 18 of The Roads Act, (R.S.Q. 1977, c. V-8), came into force by proclamation of the Government on January 1st, 1983. The new Sections 14, 15, 15.1 and 15.2 declare:

" 14: In this Act, the word 'dump' means a place where scrapped objects are deposited, whether or not such objects are intended to be sold or recycled; it includes in particular an old car dump.

15: The owner, lessee or occupant of any land who uses it as a dump within a distance of 150 metres of a road maintained by the Minister of Transport is guilty of an offence and liable, in addition to costs, to a fine of 50 to 100 dollars.

However, in the case of an old car dump situated along an autoroute or a connecting highway, the distance is determined by regulation of the Government and may vary from one autoroute to another or from one part of an autoroute or connecting highway to another.

15.1: Section 15 applies, mutatis mutandis, to the owner of a vehicle deposited in a dump.

15.2: The court which pronounces sentence following an offence under section 15 or section 15.1 shall order the scrapped objects concerned in the offence removed or destroyed by the offender within a period of eight days from the date of sentence.

If the offender fails to comply with the order, the Minister may have it carried out at the expense of the offender. "

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The first issue raised by Appelant's counsel is her assertion that her property, lot 165 of the Official Cadastre of the Parish of St-Philippe and which borders Monette Boulevard in St-Philippe, is not a "dump". It is undisputed that the said property, having a total depth from that road of approximately 200 feet (about 60 metres), falls in its entirety within the prohibited distance of 150 metres from that road and was at all relevant times owned by the Department of Transport and maintained by the Minister of Transport.

Appelant asserts that her property is rather a "scrap yard" where, since she acquired that property in March, 1964, she has operated a used automobile parts business, as she had done in virtue of a permit issued by the municipality of St-Philippe on February 17th, 1964 (Exhibit D-1).

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As a subsidiary issue, Appelant's counsel argued that, even if her said property is a "dump", she is nevertheless entitled to operate it, in spite of the existing legislation, in virtue of the doctrine of "acquired rights".

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On that first issue, is the property a "dump", the Quebec Court Judge found beyond a reasonable doubt that it is, even if some of the objects found there were, in the words of Section 14 of the New Law, " ... intended to be sold or recycled". As stated above, it is not our role to determine that question de novo for ourselves in order to decide whether or not we agree with him. We must not interfere with his findings of fact or his appreciation of the credibility of the witnesses at trial, unless we conclude that the same were manifestly unreasonable or not supported by the evidence.

A reading of the transcripts of the testimony at trial and, more especially, an examination of the photographs, Exhibits P-1 and P-3, have failed to convince this Court that the findings of fact or appreciation of the credibility of the witnesses by the first Judge were either unreasonable or unsupported by the evidence. Bien au contraire!

Neither did he commit an error in law by concluding that what he found to exist on the Appelant's property met the definition of "dump" as decreed in Section 14 of the New Law.

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As to the issue of "acquired rights", this is what the first Judge wrote at pages 13 and 14 of his Judgment:

" De plus, la Cour est d'opinon que le permis D-1 accordé le 17 février 1964, par la Municipalité de St-Philippe, a été annulé par résolution du Conseil adoptée le 6 juillet 1964, tel qu'il appert à un extrait des procès-verbaux de cette Corporation, produite sous la cote C.P.-1, pour ne pas s'être conformée aux conditions stiuplées.

L'accusée ayant dont opéré sans permis aucun depuis cette date, donc illégalement, il ne peut être question de bénéficier des droits acquis. Qu'elle soit détentrice d'un permis de recycleur (D-2) n'y change rien.

Le Tribunal a des doutes sérieux sur la validité du permis D-1, émis par la Municipalité de St-Philippe, quant au droit d'opérer."

The Appelant pleaded before us, as set out in paragraph (b) of her Notice of Appeal, that the first Judge committed an error in fact and in law when he decided that the Appelant could not invoke the benefit of acquired rights.

Judge Bélanger found that, once the Municipality annulled the Permit of February 17th, 1964 (Exhibit D-1), be enacting its Resolution of July 6th, 1964 (Exhibit C.P.-1), the Appelant's continued operations thereafter without a Permit were illegal. He concluded that those illegal operations could not constitute the basis for a claim of acquired rights.

It is true that our jurisprudence and doctrine have recognized the concept of acquired rights, but only under certain conditions and within certain limitations. However, in our view, whether the legal reasoning invoked by the first Judge flowing from the cancellation of the Permit (Exhibit D-1) is well-founded or not is not determinative here.

On August 6th, 1965, Royal Assent was given to Chapter 48 of S.Q. 1965, amending the then Roads Act, Chapter 133 of R.S.Q. 1964, by enacting and inserting therein the original legislation dealing with roadside dumps and old car dumps. That Law, entitled "An Act Respecting Roadside Dumps and Old Car Dumps" (hereinafter "the Old Law") came into force on the day of its sanction, that is August 6th, 1965. The new Sections 25a. and 25b. declared as follows:

25a:" In this act, the world "dump" means a place where scrapped objects are deposited; it includes in particular an old car dump.

25b: Dumps are prohibited within five hundred feet of a road which the Minister of Roads maintains.

This section shall not apply before the 6th of July 1975 to dumps established before the 6th of July 1965."

This Court is of the opinion that the first Judge was correct in law when he concluded that, whatever rights to operate her business on her said property the Appelant may have had up to July 6th, 1975 by virtue of the Permit Exhibit D-1 or otherwise, those rights, in any event, terminated and ceased to exist as and from that date.

In effect, by enacting that second paragraph of Section 25b. of the Old Law, the Legislature established a limited statutory recognition of acquired rights by way of a grace period or moratorium of ten years. Consequently, dumps which pre-existed July 6th, 1965 could continue to operate legally until midnight of July 5th 1975, even if during that period they violated the provisions of Section 25a. and the first paragraph of Section 25b. of the Old Law.

On the other hand, no new roadside dump, i.e. one established on or after July 6th, 1965, could legally operate if it contrevened the provisions of Section 25a. and the first paragraph of Section 25b. of the Old Law.

As regards the second paragraph of Section 25b. of the Old Law, Mrs. Zieba's attorney argued that the absence of any mention of a date in the equivalent provision of the New Law, Section 15, would have revived her acquired rights as and from January 1st 1983, even if they had expired and ceased to exist between July 6th, 1975 and the day the New Law came into force, January 1st, 1983.

With respect, we do not agree. Since the grace period or moratorium of ten years had expired at midnight July 5th, 1975, when the New Law was enacted on December 16th, 1982, it is entirely logical and consistent that the second paragraph of Section 25b. of the Old Law was not reproduced in Section 15 of the New Law.

The Appelant's ground of appeal based on acquired rights is therefore rejected.

The findings of guild on both counts must consequently stand.

We turn now to the Removal Order, which is reproduced at page 2 above.

Appelant's counsel pointed out that it is all-inclusive and does not distinguish among the various items located on the property. It covers equally the débris made up of wood, pallets and bricks, the piles of old tires, the piles of barrels of metal, rusted old refrigerators, etc., as well as the wrecks or carcasses of motor vehicles.

He suggested that the evidence at trial demonstrated that the old motor vehicles were not objects entirely without value. He argued that the appellant carried on from the property the business of selling used motor vehicle parts, whereby the wrecks of old vehicles would be cannibalized to extract and sell specific parts to purchasers who needed those exact parts for their own vehicles.

Consequently, he urged the Court, within the context of the Appeal against the Removal Order, to somehow distinguish between those motor vehicle wrecks or carcasses, on the one hand, and all the other objects on the other hand, and to limit the effects of the Removal Order to the latter.

We are sympathetic to the appelant's plight, since the execution of the Removal Order according to its terms will effectively put her out of business, as the entire property falls within the prohibited distance from Monette Boulevard. This case brings to mind the well-known adage which all attorneys and judges learned in Law School: " Hard cases make bad law". This Court is bound by the Law.

We consequently must regretfully conclude that the wording "... whether or not such objects are intended to be sold or recycled ..." found in Section 14 and "... scrapped objects concerned in the offence ..." found in Section 15.2, in both cases in the New Law, prevents us from making the distinction sought by appelant's counsel.

For those reasons, the Appeal against the Removal Order also fails.

Section 289 C.P.P. provides:

"If the judge dismisses the appeal on the record, he may, in accordance with article 223, award the costs fixed by regulation for the trial in first instance and the appeal against the appellant."

In first instance, in finding the defendant guilty on both counts, imposing two fines and issuing the Removal Order, the first Judge did not assess costs against the defendant under Section 223 C.P.P.

Section 289 C.P.P. empowers this Court to do so, both as to first instance and as to Appeal. However, Section 289 C.P.P. uses the expression "may".

In view of the disastrous consequences to the appelant resulting from the prosecution herein, this Court will exercise its discretion by not assessing costs, either in first instance or in Appeal.

FOR ALL THOSE REASONS, THE COURT:

DISMISSES the Appeal against the finding of guilt on both counts in first instance;

DISMISSES the Appeal against the Removal Order issued in first instance;

The whole without costs, both in first instance and in appeal.

BENJAMIN J. GREENBERG, J.S.C.

Me Robert W. Lord,

Counsel for the Appelant,

Me Réjean Boulet,

Counsel for the Respondent.