E. J. Gunn QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 98 Date: 2007 03 14 Docket: Q.B.C.A. No. 33/2006 Judicial Centre: Saskatoon BETWEEN: ORION RAYCRAFT and SHAUNNA RAYCRAFT, and HER MAJESTY THE QUEEN, Respondent Appearances: Orion Raycraft and Shaunna Raycraft on their own behalf Sami A. Shenouda for the Crown JUDGMENT CURRIE J. March 14, 2007 [1] At a June 2, 2006 trial in Provincial Court the appellants, Orion Raycraft and Shaunna Raycraft, were found guilty of breaching a bylaw of the Rural Municipality of Vanscoy No. 345. The trial justice of the peace convicted the appellants of breaching Bylaw 2‑1995, which provides: “That no poultry or livestock be permitted in districts zoned Hamlet.” [2] Before convicting the appellants, the trial justice heard evidence: (a) that cattle were being kept on the appellants’ property; (b) identifying and proving Bylaw 2‑1993, the zoning bylaw by which the appellants’ property is determined to be in district zoned “Hamlet”; and (c) identifying and proving Bylaw 2‑1995, the bylaw prohibiting livestock in that zoning district. [3] The appellants did not lead evidence at trial. They did not dispute that they were keeping cattle on their property. Their defence related to points of law. [4] The appellants appeal from their conviction. Four issues are to be addressed:(1) the appellants’ application to admit new evidence on the appeal;(2) a constitutional question raised by the appellants;(3) the significance of the word “hamlet” in the bylaw; and(4) the meaning of the word “livestock” in the bylaw. (1) Application to admit new evidence [5] At the hearing of this appeal the appellants applied for the admission of new evidence. New evidence will not be admitted on an appeal if, by due diligence, it could have been adduced at trial. Further, the evidence will be admitted on appeal only if it bears upon a decisive or potentially decisive issue in the trial: R. v. Palmer (1979), 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759; Carriere v. Carriere, 2004 SKCA 80 (CanLII), 249 Sask.R. 240. [6] The appellants have submitted, by way of sworn affidavits and by way of oral presentation, that some of the evidence they seek to have admitted came into their hands after the trial. have reviewed the documents tendered for admission by the appellants. Some of the documents were in the possession of the appellants earlier than the trial. These documents include correspondence and the appellants’ notes for presentation to meeting of the council of the rural municipality. As these documents were in the possession of the appellants, the documents could have been adduced at the trial. For this reason, decline to admit these documents in evidence on the appeal. [7] The evidence that has come into the possession of the appellants after the trial, and that the appellants seek to have admitted, includes: (a) minutes of the council meeting that occurred before the trial; (b) Bylaws 1‑1993, 8‑1994 and 1‑1998 of the rural municipality; and (c) letter, dated more than two years before the trial, from Saskatchewan Government Relations and Aboriginal Affairs to the rural municipality, suggesting an amendment to Bylaw 1‑1993, the rural municipality’s basic planning statement. [8] The minutes of the meeting could have been obtained prior to trial with due diligence. In any event, since the minutes serve only to demonstrate that the appellants addressed council, the minutes do not bear upon decisive or potentially decisive issue at the trial. [9] The appellants tender three bylaws of the rural municipality. The appellants have explained their unsuccessful efforts, before trial, to obtain copies of bylaws and amendments from the rural municipality. am not persuaded, however, that the documents could not have been obtained by due diligence. [10] The appellants asked for zoning information from the rural municipality, and the rural municipality provided the appellants with copies of the zoning maps that are appended to the zoning bylaw. These maps indicate that the appellants’ property is in district zoned “Hamlet”. The appellants subsequently asked for material in addition to the maps, but the appellants did not make clear what they were seeking. As described in Ms. Raycraft’s affidavit, the appellants asked the rural municipality for “bylaws and resolutions clarifying the zoning status” of their property. request of this nature does not communicate the particular documents, or even categories of documents, that are being requested. The appellants are not lawyers, but it is not unreasonable to expect non‑lawyers to frame their requests for documents in manner that permits one to understand what documents are being sought. Framing their requests in this manner would have amounted to due diligence. [11] In any event, the three bylaws tendered by the appellants do not bear upon decisive or potentially decisive issue at the trial. Bylaw 1‑1993 purports to be the rural municipality’s basic planning statement, and its relevance to the issues is not apparent. The appellants seem to suggest that there may be some inconsistency between the basic planning statement and Bylaw 2‑1995, under which the appellants were convicted, but no inconsistency is apparent. The second bylaw tendered by the appellants, Bylaw 8‑1994, purports to be an amendment to Bylaw 1‑1993, and so it shares the lack of relevance. [12] The third bylaw tendered by the appellants, Bylaw 1‑1998, purports to be an amendment to Bylaw 2‑1993, the zoning bylaw. The amendments in this document are not reflected in the version of the zoning bylaw that was put in evidence at the trial. Thus it may be, as suggested by the appellants, that the version of the zoning bylaw put in evidence was not the current version. Alternatively, it may be that the version of the zoning bylaw put in evidence was the current version, as consequence of more recent amendments. [13] For the purposes of the application for admission of new evidence, this question not matter, because the amendments set out in the purported Bylaw 1‑1998 do not relate to any issue in this matter. The amendments address other topics. [14] The letter from Saskatchewan Government Relations and Aboriginal Affairs does not bear upon decisive or potentially decisive issue at the trial. Assuming it could be proven, the references to proposed amendments in the letter would not establish that there had been any amendments. As well, the proposed amendments relate to the basic planning statement, not to the zoning bylaw or to the bylaw under which the appellants were convicted. [15] For the above reasons, the application to admit new evidence on the appeal is dismissed. (2) Constitutional question [16] The appellants ask that Bylaw 2-1995, which prohibits livestock in districts zoned “Hamlet”, be declared ultra vires on the ground that it is uncertain. The appellants have not given notice under The Constitutional Questions Act, R.S.S. 1978, c. C‑29. Notice is required when the constitutionality of bylaw is questioned. For this reason, the constitutional question is not properly before me. [17] In any event, the uncertainty on which the appellants rely in attacking the bylaw does not exist, as I discuss in the balance of this decision. Thus, even if the question were properly before me, would dismiss the application. (3) Significance of the word “hamlet” [18] The first of the appellants’ arguments on the merits relates to the use of the word “hamlet” in Bylaw 2‑1995: “That no poultry or livestock be permitted in districts zoned Hamlet.” The appellants argue that the district in which their property lies is not “hamlet” in the sense of it being legal community of that name. The appellants refer to The Rural Municipality Act, 1989, S.S. 1989‑90, c. R‑26.1 (subsequently repealed by The Municipalities Act, S.S. 2005, c. M‑36.1), which defined “hamlet” in law at the relevant time. The appellants say that the district in which their property lies does not fall under this definition, and so as matter of law the appellants cannot be guilty of breaching Bylaw 2‑1995. That is, since their district is not hamlet, they cannot be guilty of keeping livestock in district that is hamlet. [19] The appellants misunderstand the use of the word “hamlet” in the bylaw. In the zoning bylaw, and in Bylaw 2‑1995, “Hamlet” does not refer to community of that name as identified in The Rural Municipality Act, 1989. “Hamlet” is simply the label given by the rural municipality to particular zoning district. The reference in Bylaw 2‑1995 is to “districts zoned Hamlet”, not to “hamlet” within the meaning of The Rural Municipality Act, 1989. [20] The label given to zoning district is significant only as an aid to determining those parts of the bylaws that set out the rules governing that particular district. For example, in this case the appellants learned from the zoning maps that their property lies within zoning district labelled “hamlet”. With this information, the appellants were in position to peruse the bylaws relating to districts labelled “hamlet”, and to learn of the rules governing their property including the rule prohibiting cattle. [21] The appellants fail on this argument. (4) Whether cattle are livestock [22] The second of the appellants’ arguments on the merits relates to the use of the word “livestock” in Bylaw 2‑1995. Neither Bylaw 2‑1995 nor the zoning bylaw defines “livestock”, although Part of the zoning bylaw defines “Intensive Livestock Operation” as “the operation or facilities for rearing, confinement or feeding of poultry, hogs, sheep, goats, cattle or horses, in such numbers or conditions that requires permit under this bylaw.” Thus, to the extent that the zoning bylaw refers to an operation relating to keeping livestock, “livestock” includes cattle. [23] In the absence of specific definition of “livestock”, though, the appellants argue that the word is uncertain, and that it can be defined so broadly as to be either meaningless or unenforceable. [24] In support of this argument, the appellants refer to definitions of “livestock” from various sources. They point out that the broadest of the definitions of “livestock” include virtually any living creature that might be kept by people, including bees and butterflies. Against this background, the appellants ask how anyone can know what “livestock” is, within the meaning of the bylaw. If one cannot know what “livestock” is, they say, then one cannot be convicted of keeping livestock. [25] The appellants are correct in identifying range of definitions of “livestock”. Definitions include: (a) at the narrow end of the range, “cattle, horses, and similar animals kept for domestic use but not as pets, esp on farm” (Collins English Dictionary, Canadian Edition, 2005, HarperCollins Publishers); and (b) at the broad end of the range, “Domestic animals generally; any animals kept or dealt in for use or profit” (Shorter Oxford English Dictionary, 3d ed., 1973, Oxford University Press). [26] Two points emerge. First, whatever definition of “livestock” is used, the definition always includes cattle. Second, in order to determine whether Bylaw 2‑1995 has been breached by the keeping of cattle, one does not need to identify each animal that may be included in the word “livestock”. One needs only to know whether cattle are included in the word “livestock”. They are included, since cattle are “livestock” under any definition of the word. [27] The uncertainty suggested by the appellants does not exist. Under Bylaw 2‑1995 no livestock is permitted in the district. Cattle are livestock, and so cattle are not permitted in the district. [28] The appellants fail on this argument. [29] The trial justice made no error in law. His findings of fact were supported by the evidence. That being the case, there is no basis on which to reverse the trial decision. The appeal is dismissed. J. G.M. Currie
The appellants were found guilty of breaching a rural municipal bylaw which provides 'That no poultry or livestock be permitted in districts zoned Hamlet [sic].' There were four grounds of appeal: 1) an application to admit new evidence on appeal; 2) a constitutional challenge seeking a declaration that the bylaw was ultra vires for uncertainty; 3) the significance of the word 'hamlet' in the bylaw; and 4) the meaning of the word 'livestock' in the bylaw. HELD: The appeal is dismissed. 1) New evidence will not be admitted on an appeal if, by due diligence, it could have been adduced at trial. Further, new evidence will be admitted only if it bears upon a decisive or potentially decisive issue in the trial. Neither of these requirements is met. 2) The constitutional challenge is not properly before the Court as notice is required when the constitutionality of a bylaw is impugned. In any event, the uncertainty on which the appellants rely in attacking the bylaw does not exist. 3) The appellants misunderstand the use of the word 'hamlet' in the bylaw. 4) Whatever definition of 'livestock' is used, the definition always includes cattle.