J. PROVINCIAL COURT OF SASKATCHEWAN PRINCE ALBERT IN THE MATTER OF TERRY LOFSTROM, ADMINISTRATOR OF THE RESORT VILLAGE OF ECHO BAY Marc Alain TAILLON and Marianne TAILLON and Robert Brumpton FRASER and Darlene Marie FRASER JUDGMENT T.W. Ferris, PCJ A.L. BORYSKI; Schulman, Serne, Boryski and Gall, Saskatoon, SK FOR THE INFORMANT M.P. HUDEC; Lojek, Jones and Hudec, North Battleford, SK FOR THE DEFENDANTS THE ISSUE 1) The Defendants are charged with permitting a private building or facility, to wit: a boat house, to remain on public reserve lands contrary to both the provisions of Sec. 197 of The Planning and Development Act, 1983, and the Zoning Bylaws of the Resort Village of Echo Bay. 2) They didn’t deny it, although they did require the crown to prove it, as has been done. 3) They say the bylaws of the Resort Village are inapplicable and that, although their activities may constitute an offence under the provincial statute, the prosecution of it should be stayed as an abuse of the legal process, and a violation of their rights to be afforded “equal protection and equal benefit of the law without discrimination …” under Sec. 15 of the Canadian Charter of Rights and Freedoms. They say that is so because they have been singled out from among great number of offenders for prosecution for, as they see it, no good reason. THE CHARGES 4) The actual wording of the charges brought against the Defendant, Fraser, (the charges against Taillon’s are the same except as to legal description) is: “on or about the 30th day of June, 1992, at the Resort Village of Echo Bay, in the Province of Saskatchewan, being the owners of the buildings and land and bearing legal description as Lot 10, Block 10, Echo Bay, Saskatchewan, Plan 83B16092, did: 1. Contravene or refuse or neglect to comply with the zoning by-laws of the Resort Village of Echo Bay by permitting private building or facility, to wit: boathouse, to remain on public reserve land within the Resort Village of Echo Bay, contrary to Section 197 and section 221(1)(a)(ii) of The Planning and Development Act, 1983, S.S. 1983-84, c. P-13.1. 2. Contravene or refuse or neglect to comply with the provisions of The Planning and Development Act being chapter P-13.1 of the Statutes of Saskatchewan by permitting private building or facility, to wit: boathouse, to remain on public reserve land within the Resort Village of Echo Bay, Saskatchewan, contrary to Section 197 and section 221(1)(a)(ii) of the said Act.” THE FACTS The Situation Preceding Construction by Taillons 5) Some years ago the Provincial Government passed legislation requiring almost all subdividors of land to, as condition of being allowed to subdivide, in effect, make gift of ten per cent of the lands they intended to subdivide for residential purposes, or the money value thereof, to Her Majesty the Queen in right of the Province of Saskatchewan. 6) The lands so required to be gifted to the Province, or set aside, if you prefer, were designated as “public reserve” or, more recently, in some cases, as here, as “municipal reserve”. (I will use both terms interchangeably hereafter. In the event that it is necessary to amend the information to reflect the fact that the lands in question became “municipal reserve” after their transfer from the Province to the Municipality, an amendment to the wording of the charges to so describe them is hereby ordered.) 7) The uses to which such lands could be put were limited to those listed in Sec. 197 of The Planning and Development Act (hereinafter referred to as “the Act”) It says: “Public reserve or municipal reserve is required to only be used for: (a) public park or buffer strip; (b) public recreation area; (c) school purposes; (d) natural area; (e) public building or facility; (e.1) building or facility used and owned by charitable corporation as defined by The Non-Profit Corporations Act; (e.2) agricultural or horticultural uses; or (f) any other specific or general use that the minister may provide by regulation. 1983-84, c. P-13.1 s. 197; 1989-90, c. 51, s. 32.” 8) That list, of course, does not, in so many words, include boathouses, nor docks, firepits, sheds, and many other things that people like to build for use in conjunction with private cottages. 9) Neither does the only regulation made under subsec. (f), inasmuch as it says that: “A public reserve or municipal reserve may be used for any purpose that would facilitate the use of the reserve as public recreation area.” 10) Thus that regulation only expands Sec. 197(b), if anything, as it may well be that “facilitating use” would constitute use for one of the purposes specified. Sec. 221(1)(a)(ii) of the Act says that: “Every person who: (a) contravenes or refuses or neglects to comply with, fails to do any act or thing required to be done or suffers or permits any act or thing to be done in contravention of: (ii) any provision of any development plan, basic planning statement or zoning bylaw or any other bylaw, permit or regulation, enacted or made by the council, any approving authority or the minister, pursuant to this Act or pursuant to powers delegated by the minister; or 11) Clearly the intention was to provide lands for the benefit of the public at large, howevermuch subdividors, and those who purchase them, and believe that the price of their lots has been increased accordingly, think that it may have been done at their expense. 12) Prior to the enactment of that legislation, subdividors could, and did, offer “lakefront” lots for sale. They went to the high water mark. Many of the older lots at Echo Bay were created on that basis. 13) However, in the case of subdivisions created after the enactment of that legislation, including those in issue herein, cottage lots do not go to the high water mark. That is because the land that was required to be given to the Province as condition precedent to allowing subdivision was the land situate immediately behind the high water mark. Thus public reserve was created between the cottage lots and the high water mark. 14) Needless to say, many cottagers regard that land as the most desirable of all. They wish to own the land as close to the actual water as possible without intervening title holders, or uses, being permitted between them and the lake. That obviates them having to contend with others creating noise, or litter, or disturbing their privacy; or sharing their good fortune, if you prefer. 15) Although there are access walkways to such public reserves, between cottage lots, set aside on the plan of survey, unless one is familiar with the survey one would not even be likely to realize that public reserve exists, let alone realize how to access it from the landside without trespassing on cottage lots. 16) That is because diagrams of the plan of survey are not liable to be posted. Further, many public reserve lands have never been developed by governmental authorities. Many of them are in natural state. Many of them have been developed by the cottage owners immediately behind them to present the appearance that they are part of the cottage owner’s lot. That is the case at Echo Bay. 17) Moreover, at Echo Bay, old cottage lots, which go to the high water mark, exist, in some cases immediately beside newer ones which are behind public reserve which, as far as the appearances of the matter are concerned, one would take to be part of the private lot. 18) Without being possessed of plan of survey, and finding actual survey pins, one would be hard pressed to realize where private land stopped and public reserve started. 19) In great number of cases, where the area of public reserve immediately in front of individual cottage lots has been developed by the lot owner, trees, brush and rock have been cleared away. In many cases sand has been trucked in to make beaches. Often walkways, firepits, docks, retaining walls, sundecks, sheds, and boathouses have been constructed by various cabin owners over the years. Thus, as far as appearances are concerned, the public reserve in many areas looks as if it were private property, and it is used as such, in varying degree, by various cottage lot owners. There is nothing to suggest to any stranger that the land is really public reserve, let alone that he is entitled to use such facilities as have been constructed on it, if he wished to do so. 20) From the evidence heard, some cottage owners take the position that the public is perfectly entitled to use things they have constructed on public reserve, and that allowing such access makes their constructions on public reserve things that “facilitate the use of the reserve as public recreation area” and, thus, legal. That is so whether or not they see themselves as having made gift, intentionally or by operation of law, to the title holder of the reserve land of anything they affix to it. 21) Others take the position that just because they may be trespassers in erecting facility on public land does not give the public any right to utilize what they have built. They deny the public access completely, or limit public access. Presumably they would wish to sue, or prosecute, anyone, for example, who helped themselves to the use of their shed, let alone purported to take it away. 22) No doubt many of the cottagers feel that the creation of public reserves has not been of any real benefit to the public because the public doesn’t know they exist and because they would have not been developed but for the efforts of the cottagers behind them. Moreover, many would take the view that the developments they made on public reserves reduced fire hazards due to removal of deadfall and brush, and boating hazards, due to the removal of rocks, and increased public access by clearing walkways, and public enjoyment by creating beaches, keeping litter cleaned up, etc. Such arguments, of course, do not touch upon the legal right to do what has been done. They merely attempt to justify it. 23) In this case the registration of the plan of subdivision resulted in title to the public reserve in question being vested in the Province on October 25, 1983. It created public reserve in front of all cottage lots. 24) The provincial Department of Municipal Government was the agency designated to determine what activities fell within the list permitted by Sec. 197. 25) However, the Province had no effective policing mechanism to determine if anyone was violating Sec. 197, or otherwise infringing on the Province’s rights as titleholder, by trespass activities such as erecting structures without permission, whether or not such uses were within the list of permitted uses under Sec. 197. 26) Nonetheless, the Department took the position that the expense of maintaining the reserves was the responsibility of the municipality, despite the fact that the Province was the titleholder. One can imagine how anxious the local cottage owners ratepayers were to tax themselves for that purpose, let alone for policing, or prosecutorial, services to enforce the provisions of Sec. 197, or the government’s rights as landowner. 27) On January 31, 1991, an amendment to The Planning and Development Act was passed which allowed the municipalities to take title to the public reserves. For any that did so the Province had, thus, set up situation whereby it created public reserves in front of cottage lot owners, the very people most likely to see themselves as justified in encroaching on public reserves. Moreover, it passed responsibility to prosecute offenders to local councils, who are elected by those cottage owners, and required them to do it at the expense of their ratepayers the cottage owners themselves. In the event of widespread violations, great expense and controversy was predictable. The real question was whether any given council chose to act out of respect for law, or pressures to enforce Section 197, or not. 28) The Resort Village of Echo Bay took title, on July 6, 1992, at which time the land in issue became known as “municipal reserve”. 29) Lakes themselves, and the lands underlying the water, and the shoreland to the high water mark, are provincial property. Insofar as they constitute navigable waterways, they are subject to federal regulation as well. 30) Which provincial government department administers the foreshore, that is the area between the highwater mark and the actual water, varies from lake to lake depending on practicalities. In some places the foreshore might be administered by the Department of Agriculture, for example, if it is suitable for haying. In others it is, as here, administered by the Department of Parks and Renewable Resources. (The name of the Department has changed over the years, but will use that one.) The administering department might allow cottage owner to put in dock depending, for example, on whether or not it felt that would cause undue damage to fish breeding habitat. 31) However, the use that can be made of municipal reserves, as distinct from foreshore, is limited to the uses permitted under Sec. 197, whether or not they became municipal reserves, or remained public ones, and whether or not the government, or the municipality, or anyone, accepted the responsibility to police or prosecute violators. 32) It is, thus, questionable whether any municipality can validly enact bylaws purporting to deal with the uses to which public reserves may be put. Certainly do not see how municipality could purport to override the provisions of Sec. 197. It may be that a municipality might seek to even further restrict permitted uses on the strength of its rights as a land owner, but I do not see how it could have jurisdiction to allow uses not permitted by Sec. 197. deal with that issue later. only mention it now because it is the foundation of the defence argument that the charges against them for violating municipal bylaws cannot stand, and, because, chronologically, it is appropriate to do so, as the Municipality, on September 20, 1986, passed an interim zoning bylaw to control development until it could enact zoning bylaw. Further, it did enact zoning bylaw on June 20, 1987. That is the one under which the charges are laid. 33) In the result, at all times material hereto, if one wanted to get permission to build dock on the foreshore and into the water, one had to apply to the provincial department with jurisdiction over the foreshore which, in this case, was the Department of Parks and Renewable Resources, as that was the provincial agency representing the land owner, the Province. 34) If one wanted to continue the dock onto the public reserve, one had to apply to the Department of Municipal Affairs, which was the agency representing the landowner government for that land, as well as the enforcer, albeit with no staff to do so, of Sec. 197. 35) However, effective July 6, 1992, the Municipality became title holder. After that date one had to deal with the Municipality, instead of the Department, as it then became, as will appear, not just the land owner, but the enforcer of Sec. 197, as the Government took the view that it would not prosecute violators of Sec. 197. Thus the charges were laid with respect to that date. 36) Thus prior to July 6, 1992, if one wished to do anything on public reserve, as distinct from the foreshore, he had to have the permission of the Department of Municipal Affairs representing the government both as landowner and as enforcer of Sec. 197. That department would not be able to grant permission to use the land unless the proposed use was within Sec. 197. Even if the proposed use was within Sec. 197, it could, legally, still refuse permission, because, as representative of the owner, it did not wish to permit the intended use, even if it was on the list of permitted uses under Sec. 197, although, “politically”, it might not be liable to refuse. 37) After that date the Municipality stepped into that position. Moreover, it could be argued that after the enactment of the interim zoning bylaw in 1986, permission from the Municipality had to be obtained if their zoning bylaws did apply, in law, to public reserves. The Facts Underlying the Charges 38) Starting on the first weekend in August, 1986, Mr. and Mrs. Taillon built boathouse entirely on the public reserve in front of their cottage lot. 39) They did not seek permission from anyone. Mr. Taillon says that he had been told by the developer of the subdivision that he could treat the public reserve in front of his own lot as if it were an extension of his own lot. 40) He looked around at what so many of his neighbours had done on public reserve by way of building docks, sheds, walkways, steps, firepits, etc., and did what he perceived them to be doing. He built what he wanted on the public reserve. 41) His next door neighbour, Kenneth Zeah, complained, by letter dated August 5, 1986, to Jim Brickwell, Senior Planner of the Department of Municipal Affairs, that the Taillon’s had built on public reserve. 42) Mr. Zeah had known Mr. Taillon was going to do it. They had discussed it. Mr. Zeah says that he was told that the boathouse was only going to be certain height. He said Mr. Taillon built it higher and the result was to obstruct Mr. Zeah’s view of the lake more than he had anticipated. He prefers view of the natural scene without man-made objects of any kind blocking it. On seeing pictures of the view, one can sympathize. 43) Yet it is clear that if structure within the list permitted under Sec. 197 had been built on public reserve, by proper authority, he would have had no recourse. 44) In my view his complaint that it was on public reserve was not rooted nearly so much in any concern he had with improper use of public reserve, but in his desire to protect his view. 45) Indeed he had cleared trees, and built firepit, on the public reserve in front of his own lot without permission. 46) It was, in fact, primarily the view from “his” firepit, on the public reserve, that was blocked. 47) have no doubt that his complaint that the public reserve had been violated was simply the legal mechanism he utilized to try to preserve his view. Certainly that was what Councilman Thrasher took to be behind Mr. Zeah’s oral complaints. 48) Presumably the Taillon’s took the same view of it, and saw themselves as doing no more than other builders of sheds, boathouses, and etc. had done. Doubtless they would see the boathouse as little worse than firepit, and less of hazard. 49) do not, of course, accept that they would have believed that developer’s statement that they were entitled to use the reserve in front of their lots as if it were their own land was an accurate representation of the law. They had to know it was land that they did not own and that they would be trespassers if they built anything on it without permission. 50) have no doubt that they did not seek such permission for the same reason that many others apparently did not for fear it would be refused. They had to have thought that refusal would be probable because the provincial authorities would be entirely likely to see boathouse on public reserve as constituting private use of lands reserved for the use of the general public. 51) That would be so even if they were unaware that there was any law, such as Sec. 197, which listed the only permitted uses, let alone that boathouses were not on the list. 52) Thus arose the situation wherein the two neighbours quarrelled about the virtues of, and their legal right to get, their own way, as well as the benefits to the public, involved in their equally unauthorized uses of public land, with an eye to their respective self-interest. 53) For example, Mr. Zeah says the public can use his firepit, taking the view, no doubt, that that means that it does not constitute violation of Sec. 197. Yet he would be secure in the knowledge that the public are not likely to use it. Many people would not realize that it was on public property, let alone open for their use, and, in any event, would be reluctant to use it, even if they knew it was on public land, and that he purported not to object to their use of it. 54) The eventual result of that disagreement was this inquiry into whether the defendants’, not Mr. Zeah’s, activities, constituted violation of Sec. 197 and the Zoning Bylaw. The civil liabilities of the interested parties for trespass to public or municipal reserves are not directly in issue. 55) On receipt of Mr. Zeah’s complaint, Mr. Brickwell told Mr. Taillon he should stop work on the boathouse because it might have to be removed. He also referred the matter to the municipality, asking their help in settling it. 56) To my way of thinking, that was curious thing to do. 57) The Department ostensibly took the position that the Municipality was only responsible for maintenance on public reserves, not policing Sec. 197. Legally one wonders how the municipality could even have been visited with the responsibility for maintenance if the municipality had resisted it. Presumably, they simply didn’t do anything, and thus it could not be said that they had either accepted or declined the responsibility for maintenance. However, at that time it was clearly the Department that was responsible for policing, and enforcing, Sec. 197 and, moreover, it was the representative of the landowner with the responsibility to prevent trespass, whether or not any trespass constituted violation of Sec. 197. 58) Perhaps the request for municipal help was motivated, in part at least, by the lack of policing resources in the department, and the hope that local authorities could solve the enforcement problem more easily than outsiders. 59) Whatever the motivation, the request for municipal mediation clearly carried with it the risk that Mr. Zeah would be persuaded to drop his complaint but the boathouse would remain on public reserve. If that had, in fact, happened, having the municipality settle the matter would, of course, have come at the price of the continued existence of an ostensible violation of Sec. 197, and the Government’s rights as landowner, which would be used as precedent by other cottage owners to justify doing whatever they liked on public reserve. Thus, to me, it was curious step to take. 60) The mayor, Jim Christie, and several councillors met with the Zeah’s and Taillon’s. 61) It was agreed that the boathouse would remain, but would not be constructed as high as the Taillon’s had lately, at least, intended, that the roof would not be used for deck, and that no guardrail would be placed around it, so that it would be less likely to be used as deck. 62) Of course, none of the participants had any legal authority to authorize the construction of anything on public reserve, let alone condone any violation of Sec. 197 that might result from such construction, or regulate the specifications of any such construction. 63) Mr. Zeah and Mr. Taillon shook hands. 64) Doubtless Taillons thought that deal had been struck, which would mean that they would probably escape not only civil action, but any possible prosecution. 65) Certainly Councilman Thrasher was not in any doubt that that is what had occurred. As he put it, it was case of: “Not rattling the cage. There were developments all over the public reserve, including by the mayor, and everyone knew it.” 66) Nonetheless, Mr. Zeah reconsidered his position and, the next day, August 14, 1986, he wrote complaint to the mayor that the Taillon’s had violated the law. 67) On October 28, 1986, Mr. Brickwell wrote to the mayor, saying the departmental officials had inspected the site, and asked the council to write Taillon’s, requesting them to relocate the structure onto their own property. 68) Council apparently took the position that it had proceeded far enough down the path of assuming the Department’s responsibilities for enforcement of landowners’ rights, and statutory violations with respect to public reserve, because, they advised the Department, by letter dated November 24, 1986, that it wasn’t their land or their responsibility. 69) There was no evidence that, thereafter, the department officials did much of anything to get Taillon’s to comply with the law as they saw it. However, on June 12, 1987, Mr. Brickwell told Mr. Taillon that, although no decision had been reached as to what was going to be done, he wouldn’t put any more money into the project if it were his. 70) The apparent inaction by the Department might be explained, in part at least, because the Department was expecting the Government to pass legislative amendment, which it eventually did, by which the Municipality might be persuaded to accept title, and with it, the accompanying problems of enforcement, if not the costs of prosecution. 71) The municipality didn’t do much for some time either. No doubt that was because, according to the municipal clerk, the Municipality was of the view that its new zoning bylaws did not apply to public reserves and it was not, then, prepared to act under the possible authority of them. 72) According to the clerk, some time in 1989, Mr. Brickwell told council that the Government would be enacting legislation which would entitle them to become owners of the public reserves. That that occurred in 1989 was confirmed by Councillor Yahnke, who said that until they were informed that that legislation was coming, they viewed the problem as provincial responsibility. 73) Perhaps more pivital was the fact that in 1989 the Frasers stated construction of their boathouse. Presumably they were motivated, in part at least, by seeing that nothing was being done about Taillons’ or other people’s boathouses and other constructions. 74) No doubt council’s reaction to Frasers’ construction was based on fear of others doing the same in the future, as well as on the prospect that council was liable, in the near future, to inherit jurisdiction as landowner of public reserves. In any event, in June of 1989 council wrote Mr. Fraser, asking that he produce his authority to construct boathouse, and saying that if he did not do so they would issue stop work order. That, of course, would have to be under the purported authority of the zoning bylaws, which they did not really feel applied to public reserves. 75) The council also offered to meet with the Frasers about the matter in July. When they received no response, council did issue stop work order. 76) On October 21, 1989, council passed motion purporting to turn the matter of possible prosecution with respect to violations of Sec. 197 by three boathouse builders, being the instant defendants and third party, Foster, over to the R.C.M.P. 77) According to Mr. McCaig, the mayor at the time, the reason was the usual one, that the Province was the landowner, and enforcer of Sec. 197, and, accordingly, it was appropriate that the R.C.M.P. should assume the burden of prosecutions for violations of provincial statutes, not the Municipality, even though it had zoning bylaw by then. 78) The R.C.M.P. considered the matter for some time, but then declined to prosecute, doubtless, in some degree, because they saw goodly number of investigations and prosecutions awaiting them on the horizon. 79) On August 25, 1990, council resolved to “authorize Urban Affairs to look into boathouses and outlining course of action we can take to have them removed”. The use of the word “we” indicates that council had apparently come to the conclusion that it was not going to be able to persuade the Department of Urban Affairs, or the R.C.M.P., to enforce the Province’s rights as land owner, or the Province’s laws, so they would have to assume responsibility themselves, or see the situation deteriorate even further. 80) On December 12, 1990, Mr. Brickwell came to meeting of council and told them his department would not become involved. Council then passed resolution to authorize their solicitor to “proceed with action to have the boathouses removed”. 81) Mayor McCaig says council saw itself, at that time, as dealing with all boathouse violators that it was aware of, because it thought there were only three. The Defence pointed out that there was apparently fourth one and that, at one time, there had been fifth one. 82) On February 22, 1991, council’s solicitor wrote to the Defendants and the Foster’s, telling them that they had to remove their boathouses by June 30, 1991, or be prepared to face legal action. 83) The new owner of the Foster boathouse complied. 84) The defendants did not. 85) On November 16, 1991, council authorized their solicitor to proceed. 86) Notwithstanding that council was of the view that boathouses on public reserve were illegally situated, the Taillon boathouse was assessed for property taxes. In my view that is immaterial. The fact that it was done does not imply that council was giving approval to the location of the boathouse on public reserve. It merely means that council took the view that it was, by law, required to assess and tax all structures, whether they were legally constructed, or situated, or not, just as income tax authorities tax income which is illegally obtained. 87) The defendants took the position that if they were to be prosecuted, so should all other apparent violators. 88) They had their solicitor, Mr. Hudec, write to council, advising them that in their view there were some 119 other violators. 89) They also wrote to the ratepayers, on May 25, 1992, about the unfairness and the anticipated expense to all concerned. 90) Council replied with its own circular to the ratepayers on June 29, 1992. That newsletter set out council’s view of its legal rights and responsibilities with respect to public reserves. That newsletter, in fact, adopts the views as to the applicable law which council had received from John Nanson, the Principal Planner of the Community Planning Services Branch, in letter from him dated June 19, 1992. copy of it is annexed. 91) Council met with concerned ratepayers on July 18, 1992. Apparent infractions by others were discussed, most notably, perhaps, “Kinsmen Beach”, large beach, boathouse, and dock development undertaken on foreshore and public reserve, apparently financed by some ten private families for their personal use. 92) At that meeting the defendants asked council to lease the public reserve in front of their lots to them. Council refused, believing that the Act did not allow it. 93) Sec. 201(1) of the Act says that council may “lease or any part of the municipal reserve for any of the purposes provided in Sec. 197”. 94) Obviously, council was taking the view that the boathouse was private structure and, accordingly, they could not lease public reserve for such purpose, as it was not listed in Sec. 197. 95) Clearly at that stage both sides were long since fixed in their positions. Council continued to take the view that private use structures, such as boathouses, on public reserves violated Sec. 197, and that they must prosecute the builders of them if they were to fulfil their duty to uphold the law, discourage further violations, and ensure that public reserve lands were, in fact, open for use by the general public. 96) The defendants took the view that either everybody who was violating public reserves should be prosecuted, or nobody should be prosecuted. 97) In reply to that, council took the position that it was wiser to proceed with prosecutions only in respect of boathouses, initially, to see if the courts upheld their view of the law. If it was held that their views were correct, it would be time to consider prosecuting other apparent violators. If council’s views were upheld, it might not be necessary to prosecute many others at all, because many cottage owners, in apparent violation, might comply with the view of the law expressed by the court. Thus no expense in prosecution might be necessary in many cases. If the Court did not uphold the view of council as to the law, they should not be incurring the expense of prosecution of others in any event. 98) Council also took the view that prosecution in respect of boathouses instead of other apparent violators, such as shed owners, was appropriate because it was boathouses that had resulted in the complaint, and they were a very private use, analogous to sheds, whereas with respect to other uses, such as walkways, docks, firepits, etc., it could be argued did not violate Sec. 197, as they could at least be utilized by the public at large. 99) Although it was accepting that it had to assume responsibility for trying to get the boathouse builders prosecuted for fear of even more violations in the future, because neither the Department of Municipal Affairs, nor and the R.C.M.P. would pursue the matter, council nonetheless tried to avoid the expense of the actual prosecution by attempting to get the Department of Justice to finance it. They wrote to that Department, pointing out that the Department had done so in another prosecution against boathouse builder. 100) The Minister of Justice, Robert Mitchell, refused to do so, saying that that earlier prosecution by his department had been mistake and that: “It is the policy of public prosecutors to not become involved in bylaw prosecutions or other matters of local concern such as this matter.” 101) Thus council was left in the position where it either had to assume the expense itself, or do nothing. It decided to go ahead. 102) The clerk swore out the Informations on February 2, 1993. Thereafter the prosecution proceeded with normal dispatch, given its complexity. The Defence Evidence of Other Violations 103) The defendants feel so strongly that they have been unfairly singled out that they went to remarkable effort, and expense, to show the number of other apparent violations by other cottage owners. 104) They hired surveyor. He was called as witness and filed his plans showing encroachments on public reserve by others. They took great number of photographs. They even did video tape along the shoreline from boat. was informed that the expenses incurred by the middle of the trial were approaching $25,000 for the defence and some $10,000 less for the Municipality. Of course the defendants will get to bear portion of the prosecution expenses as ratepayers. 105) Needless to say, it is not the purpose of these proceedings to pass on whether others have violated Sec. 197, or trespassed against the landowners’ rights in public reserve. In most cases the other alleged violators were not heard from, even as witnesses. In no case has anyone been charged. 106) The purpose of that defence evidence was to show that council had reasonable grounds to conclude that there were great number of other apparent violators, but chose to do nothing about them, prosecuting only these defendants. 107) Thus that evidence was used to found an argument that these proceedings should be stayed as an abuse of the legal process, and as violation of the defendant’s rights to “equal protection and equal benefit of the law without discrimination” under Sec. 15 of the Charter. 108) The defendants see the selection of themselves as the only ones to be prosecuted out of such a large number of apparent violators, for no reason that they believe could be viewed as sufficient, as, in itself, unfair and discriminatory within the prohibition of Sec. 15 of the Charter. 109) What weight should be put on that argument depends, in part, on how many other apparent violations there are. That, in turn, depends upon the interpretation of Sec. 197, because, if one accepts the interpretation put on it by Mr. Nanson in his letter annexed hereto, there are fewer apparent violations than the defence believes exist. That, of course, is because Mr. Nanson basically takes the view that things on the public reserve, such as walkways, which can be used by the public at large, are not violations of Sec. 197. 110) The expressions of opinion as to the number of violations offered by the various witnesses have to be interpreted keeping that distinction in mind. 111) Councilman Thrasher, as indicated, said “there were developments all over the place on public reserve”. He admitted to clearing bush, and placing sand on public reserve in front of his cabin himself. He listed numerous developments he took to be in violation, including one by the then mayor, Jim Christie. 112) Mr. Christie said that it was not violation as it was on his own property, but agreed that he used public land for construction of steps and driveway. Like Councilman Thrasher, he has said that although the focus of the meeting between Zeah’s and Taillon’s was on the height of the boathouse, rather than the fact that it was on public reserve, it had been made clear to Taillons that the council had no authority to authorize construction of the boathouse at all. He said he told Fraser’s the same thing. 113) Bob Yahnke, councilman from 1984 to 1988, agreed that council’s position was that it had no jurisdiction with respect to public reserves. He held that view until 1989, at which time he understood the Government had given over “maintenance” of public reserves to the Municipality. He had no problem with things being on public reserves, so long as they were not kept for private use. 114) Peter Konchak, neighbour of Taillon’s, said he cleared and levelled, and moved in sand, with the authority of shoreland alteration permit. However, he said he put in steps, trenched in water line to the lake, and built crib on public reserve without permission. Under Sec. 204(1)(a)(iii) it is possible to obtain lawful permission for wells and water and sewer lines. Mr. Konchak said he got no complaint from his neighbour on the other side, Councilman McPique, whom he understood to draw water from the lake herself. 115) Gary Smullen testified that he put in railway ties to prevent erosion on public reserve on the advice of Mayor Christie, and that he built locked shed, and installed water pipe on public reserve. He agreed that his garage was also partially located on public reserve. He said he felt that the public reserve was an extension of his property, and that he intended to continue using it as such. He said that councilwoman McPique had cleared brush, and boulders, and deposited sand, as had Mayor McCaig. 116) Bob Barlow, councilman since 1993, testified that on “his” public reserve, he planted lawn and built firepit. He signed the petition instigated by the defendants to stop the prosecutions. It was his view that “99 percent” of the residents have done things to change the public reserve. He agreed that if “Kinsmen Beach” was being utilized for only private use, it would not be right. He also agreed that he was, personally, in effect, “bent” on letting people violate Sec. 197 like he was doing himself. 117) He advocated “grandfathering” non-conforming uses, i.e. violations of public reserve. 118) Grandfathering is not possible, among other reasons, because no bylaw could be lawful which purported to override the Act and Sec. 194.1 says: “(1) municipality may acquire the title to any land for the purpose of dedicating the land as municipal reserve. (2) Any land acquired pursuant to subsection (1) is municipal reserve and is subject to the provisions of the Part.” “This Part” includes Sec. 197. 119) Ida Ens testified that she had been told that Kinsmen Beach was private by one of the persons who had apparently developed it. She understood that she might be allowed to use it if she bought share, and that the developers of it had each spent several thousand dollars on the construction. 120) Caroline Taylor testified as to her embarrassment when she was told that “Kinsmen Beach” was private land, which she could not use, because ten families had put in ten thousand square feet of turf, dock, and boathouse, at their own expense. The selfproclaimed owners had erected sign to the effect that it was private beach. 121) The defendant, Robert Fraser, testified, as had others, that he had been told, with respect to the public reserve, by the developer, that he could “take the land and use it as your own”. 122) Like the others, he had to know that that would be trespass and could not have taken such statement to be legal opinion rather than just an expression as to what the of enforcement of the law might be. 123) He dug out the bank in the fall of 1988, and erected his boathouse in the spring of 1989, knowing that it was partially on public reserve. 124) When he found the note from council requesting that he produce his authority to do so, or stop work, he called Mr. Brickwell. That, however, was after he finished all of the construction except the door. He says Mr. Brickwell told him there were thousands of violations in the province and that enforcement was on the backburner, and that he need not be concerned. 125) If Mr. Brickwell said that, Mr. Fraser had to take it, not as indicating that he had any legal right to do what he was doing, but as just another opinion that he might escape prosecution. Inasmuch as he had just received notice from council that they were calling his authority to proceed into question, he should have wondered how accurate such an assessment of the likelihood of prosecution could be. Perhaps he just convinced himself that if there were violations all over it would be even more unfair for council to proceed and hoped they would see it that way. 126) He talked to Mayor Christie, who invited him to council. 127) He says he told council of other violations, but got the impression that they weren’t interested in proceeding to investigate, or let alone prosecute, others. 128) have no doubt that he had to know of many other apparent violations when he began his construction. In particular, he would have been aware of the controversy over Mr. Taillon’s right to proceed in the face of Mr. Zeah’s complaint. No doubt he realized that not much had apparently been done about prosecuting Mr. Taillon and made his decision to go ahead with that knowledge. However, clearly he was incurring the deliberate risk of prosecution because he thought it was slight risk. He continued to do so after getting the notice from council. No doubt he felt that it would be unfair to prosecute him, or only boat owners, but, presumably, he also felt it was unlikely that anyone would actually be prosecuted. 129) Whatever may have motivated him to go ahead is not material. What does matter is that he clearly chose to do so, without bothering to investigate his legal rights to do so, let alone obtain any permission to do so, at time when the Zeah-Taillon controversy was still in the air, and, after he began construction, in the face of the notice from council. 130) conclude that Mr. and Mrs. Fraser decided to build their boathouse because they thought the risks of being prosecuted were unlikely although, no doubt, they also had very strong views that prosecuting them, and not everyone else, is not fair. 131) That does not mean that they cannot, now, complain that they have been unfairly prosecuted. However, it does mean that they were not unwitting innocents who, for example, had been misled by persons in authority as to their legal rights. 132) He sees the action against him as “personal matter” and as “malicious prosecution”. He said that, in his eyes, “it doesn’t matter that the outcome is”, i.e. if he loses he will still be convinced that he is right as to what constitutes fairness. 133) He felt that Mr. Hudec’s written estimate of there being some other 119 violations was probably only one-half of the true number. He testified in support of his views in that regard, in great detail, with the aid of the maps, surveyors’ sketches, photographs, and the video taken from off shore. 134) The defendant, Mr. Taillon, also testified that he knew that he had built his boathouse on public reserve, when he did it in 1986, but the developer told him it was alright to use public reserve. 135) He also said Mr. Brickwell told him, after the meeting with the Zeah’s, that encroachments on public reserve were “not primary issue” in his office and that “nothing is going to happen”. 136) Mr. Brickwell testified that he did not recall saying that, but agreed that he probably had not demanded that the boathouse be removed because, as he saw the situation, his department did not police the public reserves. 137) Thus Mr. Taillon, like Mr. Fraser, started his construction relying on what the developer, who wanted to sell him lot, told him, and what he saw going on around him. 138) Also, like Frasers, his construction was effectively finished by the time he spoke to Mr. Brickwell, so whatever Mr. Brickwell told him cannot be taken as having affected his decision to proceed, in the first place, as distinct his decision to continue, and leave the construction in place. Of course, even on the versions of both Mr. Fraser and Mr. Taillon, the most that can be said is not that Mr. Brickwell told them what they were doing was legal, but, rather, that they might well get away with it. 139) Mr. Taillon also sees the prosecution of boathouse owners as unfair, given the great numbers of other violations that exist. As he puts it, “I’ll remove my boathouse when everyone else does the same”. 140) Thus, none of the defendants can rely on any defence of being misled as to their legal rights by persons in authority. Applications made by the defendants to the Department of Parks for permission to build things on the foreshore, which were based on misleading diagrams, are not material to the public reserve. They merely indicate desire to purport to have obtained permission. 141) The case turns, as they themselves say, on the question of whether it is an abuse of the legal process to prosecute them when so many other apparent violators have not been charged, or a case of violating their rights under Sec. 15 of the Charter. The Interpretation of Sec. 197 142) As indicated, the purpose of the Defence evidence as to the number of other violations was to indicate that they were so numerous that the prosecution of the defendants was an abuse of process and violation of Sec. 15 of the Charter. 143) How unfair it is to prosecute the defendants turns, in some degree, upon how many other apparent violators there were who were not prosecuted and why they have not, as yet, at least, been prosecuted. That, in turn, depends, in part, upon the interpretation of Sec. 197. As indicated, council adopted the view of Mr. Nanson in that regard, as set out in his letter hereunto annexed, and set it out in the circular they sent to the ratepayers. 144) The Defence says that Mr. Nanson has it wrong, that, actually, or ostensibly, allowing the public to use private construction, such as dock, shed, boathouse, firepit, etc., does not turn such private construction into “public building” or “public facility” under Sec. 197 or the regulation passed thereunder. 145) In my view the Defence is right. 146) To accept Mr. Nanson’s view implies that any private citizen can construct whatever he likes on public reserve and only be liable in trespass, for example, to an action for an injunction requiring him to remove whatever he built, but not to prosecution. That allows private citizens to determine what constitutes “public facility”. Any private citizen could decide, for example, that large windscreen, would be nice, regardless of what effects that may have in depriving the general public of any ability to utilize, or even walk across, the public reserve, and, regardless of whether the public authority which owned the land wanted such construction. 147) If that is proper interpretation of Sec. 197, it would leave the council in position that it would have to launch civil actions to effectuate removal of all private constructions. If that were the intention of legislation, no offence would have been created in the first place. The title holder would simply have been left with civil remedies. 148) In my view, the result of Mr. Nanson’s interpretation is that what use can be made of public reserve is left in the hands of private individuals, who will often act with an eye to their own self-interest. do not believe that it could have been the intention of the legislature to allow such chaotic situation. It would give rise to great number of disputes such as the present one. 149) As see it, the fact that the titleholder must be the Province or Municipality, and the very use of the word “public” in Sec. 197, indicate that the legislature intended that the decision as to what constitutes “public building” or “public facility”, etc. is, initially, to be made by public authority, such as the title holder in the case of municipalities, or the appropriate department in the case of lands owned by the Province, not every private citizen who cares to do something on public reserve that he chooses to say is beneficial to, or open to use by, the public, whether or not it may have every appearance of being primarily devoted to his self-interest. 150) An interpretation, which allows private citizens, be they adjacent cottage owners, or not, in effect, turns public reserve into private reserve that defeats the very objective of the legislation, which is to ensure that public reserve is used for the benefit of the public at large. 151) That, of course, does not mean that in the event to prosecution that the Court is bound to adopt the interpretation of the appropriate public authority. Public authorities, themselves, may, deliberately or by mistake, categorize things incorrectly as constituting “public facility”. However, it does mean that the initial decision as to what constitutes “public facility” is not to be made by private individual, but must be made by public authority. 152) am reinforced in my view, that such an interpretation must be contrary to the intent of the Act by the consideration that, when, as here, municipalities become title holders, they might take it upon themselves to authorize uses that did not come within Sec. 197. If they could not be prosecuted, there would be no remedy whatsoever, as they would certainly not bring civil action against themselves. 153) private individual is not entitled to do what he likes on public reserve with the result that it becomes “public facility” if he allows the general public to use it. It is not, in my view, “public facility” unless it is autorized to be built, or actually built, by the governmental agency that has the legal power to make such determinations with respect to the land in question, and, in fact, is intended to be, and is actually open for use by the general public, whenever it is open for use by anyone. 154) The result is to interpret Sec. 197 as if it said: “Public reserve or municipal reserve is required to only be used for ‘such of the following purposes as is authorized by the public authority having jurisdiction in that regard’ (addition mine) Alternatives to my Interpretation of Sec. 197 155) This interpretation is what is known as purposive one, in that it rests on my views as to the overall intention of the legislation. That approach is, in my view, the one favoured by the Supreme Court of Canada in its most recent decisions. 156) There are other principles of interpretation, which are often applied to penal statutes, which could lead to the contrary result. For example, there is principle that penal statutes are only to be applied against persons who clearly come within them. If it is not clear that person’s activities are prohibited, he is to be given the benefit of the doubt, and, thus, penal statutes are to be strictly construed. The idea is that people should not be convicted of offences, even regulatory offences, unless they clearly fall within them. People should not have to guess as to what activities constitute an offence. 157) If those are the appropriate principles to apply, rather than purposive approach, my view that no one has the right to do what they like in public reserve without authorization by public body is wrong. What constitutes “public facility”, on that approach, turns simply on whether it is left open for use by the public, as Mr. Nanson believes to be the law. If that is so, the results, for the purposes of this litigation, are two-fold. 158) Firstly, there are far fewer other violators than the defendants, and I, think there are. The result is that the council’s decision to prosecute only boathouse builders is therefore apparently less unfair. Thus, if Mr. Nanson’s view is correct, it counts against the defendants’ argument. The defendants can only say they are among, perhaps, dozens of apparent violators, rather than scores, if not hundreds. 159) Secondly, a restrictive interpretation does not give the defendants a defence to the charge in any event, as their boathouses are not open for use by the general public. Clearly they do not intend the general public to have access. They do intend to control who has access. They intend to retain ownership, of the building and its contents. They intend to authorize use of it by persons other than themselves only if they see fit to do so, not allow any public body to decide the matter, nor to allow the public at large to have access. Moreover, their very existence prevents the public from utilizing the public lands on which they are situate. 160) In short, they have constructed a private facility on a public reserve. That is not a permitted use under Sec. 197, even interpreting it as Mr. Nanson does, and, accordingly, their boathouses are illegal under Sec. 221(1)(a)(ii). 161) Thus under either approach to the interpretation of Sec. 197, the defendants must be found guilty unless the prosecution is stopped as an abuse of process, or because it violates Sec. 15 of the Charter. Was There an Abuse of the Legal Process? 162) Even if am wrong in concluding that nothing can be “public facility” within the meaning of Sec. 197, unless it is authorized by public agency, and that in holding that for things to properly be declared to be within Sec. 197, by public authority, they must also be open for the general use and benefit of the public at large, rather than kept for the use of private individuals, that error does not impact upon the number of violators that council perceived to have existed. It adopted Mr. Nanson’s opinion, in good faith, and, thus, made its decision to prosecute believing fewer private developments to be offensive than I, and the Defence, do. 163) When it decided to prosecute, the council cannot be said to have discriminated in favour of people that it thought were offenders in the face of the interpretation given by an appropriate governmental authority. Nor can it be said to have viewed the pool of prospective defendants as smaller than believe it to be out of male fides or self interest. am not prepared to say that the prosecution is “more unfair” because they did not interpret Sec. 197 as do, when they had an opinion to the contrary, on the theory that interpreting it as they did shows lack of diligence in ascertaining the law before deciding who to prosecute. 164) Thus, insofar as fairness in prosecuting turns on the size of the pool of prospective defendants, and the bona fides of council in viewing it as smaller than the defendants saw it to be, am not prepared to fault the council. On the contrary, have no doubt that council saw itself as prosecuting defendants whom they saw as committing as clear violation as any one, including builders of sheds. 165) They picked boathouse builders rather than shed builders, or any other class of violators, let alone all violators. Doubtless all boathouse builders see this as unfair and discriminatory, but it does not automatically follow that it was. On the contrary, as see it, the fact that they were picked out was, in large measure, result of the way events unfolded. 166) Mr. Zeah complained. There were no complaints against shed owners. One can say that it would have been fair to prosecute shed owners as well. Indeed it would. And, perhaps, that will come to pass. However, to have done so initially would have added to the expense to the ratepayers, materially, at no perceived benefit from the point of view of getting clarification of the law. decision on boathouses was as likely to lead to clarification as one against shed owners, and there were no complaints against them. 167) Council chose to run test case against the type of violations that had elicited complaint. One can say that it was unfair that others, particularly shed owners, were not prosecuted, but am not convinced that it was because council was motivated to proceed against boathouse owners for improper reasons. They had complaint upon which they felt they had legal duty to act. They wanted test case to determine their legal position. Test cases are common, and an entirely appropriate legal procedure, often promoted by the defence as well as the crown. Thus can see nothing “unfair” in the picking out of the defendants for prosecution, except in the sense that it can be said, as the defendants do, that it is “unfair” unless everyone is prosecuted, at whatever expense, even if it is likely that most violators will comply once the legal situation has been made clear. 168) Thus the question arises as to whether, because it would have been “fairer”, in that sense, to prosecute everyone, or at least those that council perceived, on the basis of Mr. Nanson’s advice, to be offenders, means that prosecuting only boathouse builders is an abuse of process. 169) When faced with the usual example that you do not have defence to speeding charge because the police have not prosecuted all speeders, Mr. Fraser made the point that the other violators in this scenario were not moving. 170) Although it is true that the selective prosecution here was not dictated by the circumstances of apprehension, it does not follow that selective prosecution, per se, is an abuse of process. Whether it does so depends on the circumstances. 171) Here there is no evidence that the defendants were selected for improper reasons, for example, that council wished to harm them in particular, individually, or as group, out of all possible offenders, or groups of offenders, because, for example, of personal animosity between councillors and the defendants. The mere fact that you have been selected for prosecution does not mean that you have right to demand that proceedings be stopped unless all other offenders are prosecuted, however easy, difficult, cheap, or expensive, or unnecessary that may be. The Legal Test for Abuse of Process 172) The defendants must show that they have been singled out unfairly, not just that they have been singled out. As it was put in v. Keyowski (1988) 1988 CanLII 74 (SCC), 40 C.C.C. (3d) 481, by Madam Justice Wilson, speaking for the Supreme Court, in case where the Crown sought to try defendant for third time, but there was no suggestion of misconduct or improper motive, said, stopping prosecutions for abuse of process is power that is only to be exercised in the “clearest of cases”. If it is to be done, the Defence must convince the Court that proceeding exceeded “the limits of the community sense of fair play”, and that the administration of justice is best served by stopping the prosecution. 173) Obviously, such phrases require value judgment by the court. Some may see in them change in position by the Supreme Court from its previous decision in v. Rourke (1977) 1977 CanLII 191 (SCC), 35 C.C.C. (2d) 129, wherein Mr. Justice Pigeon had said that there was no general discretion to stay proceedings because they were considered to be “oppressive”. 174) Perhaps the Alberta Court of Appeal took decisions such as Keyowski to indicate change from Rourke, inasmuch as it held in Kostuch (1993) 1992 ABCA 103 (CanLII), W.W.R., 696, that stay of proceedings is only available if the prosecution violates the community sense of fair play and decency, or it is case of oppressive or vexatious proceedings. At least, that is what the headnote says it held, as distinct from the report itself. Cf. v. Tabor (1993) 1993 CanLII 7782 (NL CA), 84 C.C.C. (3d) 449, where the Newfoundland Court of Appeal uses phrases such as “whether putting the accused on trial was ‘unfair’ or ‘fundamentally unjust’ as well as ‘oppressive and vexatious’ ”. 175) Such approaches might reflect the earlier decision of the Supreme Court of Canada in v. Jewitt (1985) 1985 CanLII 47 (SCC), 21 C.C.C. (3d), 7, wherein Mr. Justice Dickson reviewed the decision in Rourke, and subsequent decisions in the Supreme Court, and adopted the test set out by the Ontario Court of Appeal in v. Young that: “There is residual discretion in trial judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency, and to prevent the abuse of court’s process through oppressive or vexatious proceedings.” 176) Of course, one can take the view that if proceedings are “oppressive” or “vexatious”, they would violate “the community sense of fair play”, so it may be that it comes down to much the same thing, i.e. that proceedings are not to be stopped unless it is “the clearest of cases”, that “the community sense of fair and decency” has been violated. 177) am not aware of any case that holds that picking out defendants to prosecute from among possible pool of offenders, because one of their group has been the subject of complaint, even if the complaint is largely tinged by self-interest, for the purpose of ascertaining the legal position of all interested parties, violates “the community sense of fair play and decency”. 178) The defence relies most heavily on Regina v. Miles of Music Ltd. (1989) 1989 CanLII 255 (ON CA), 48 C.C.C. (3d), 96, decision of the Ontario Court of Appeal wherein Mr. Justice Krever said, at p. 106, that: “… the respondent must establish, on balance of probabilities, that the Crown has acted in an oppressive or vexatious manner, or, that the prosecution is offensive to the principles of fundamental justice and fair play. No case can fall within the category of the ‘clearest of cases’ unless it can be fairly said that the cause of the apparent unfairness complained of can be laid at the doorstep of the executive, that is to say, can be attributed to either the police or the crown or both.” 179) In that case it was held not to be so because the improprieties in issue there had resulted from the activities of an investigator for the private recording industry, although the result was that the defendant disk jockey had been selectively prosecuted for violation of The Copyright Act. Indeed he was the first person to be prosecuted for making and selling compilation cassette tapes. 180) In this case the defence suggests that council not only did not prosecute, but didn’t even bother to investigate whether other apparent offenders had violated public reserve, despite the defendants having brought to council’s attention evidence of apparent violations. 181) In the case of the fourth boathouse, it appears that the defendants are right in their suggestions that it was on public reserve, and that Mayor McCaig was wrong in his belief that it was not. In the case of the Kinsmen Beach boathouse, although the boathouse itself, as distinct from the other developments, is on public property, it is not on public reserve. Thus the builders of it were not amenable to prosecution under Sec. 197, if the prosecution was to be restricted to boathouse owners. 182) However, the individual rights or wrongs of any given case are not in issue. What is complained of is that council did not investigate, let alone prosecute, apparent violations brought to their attention by the defendants. That is so. They did not. However, having had the opportunity to watch Mayor McCaig give evidence, am satisfied that he is patently straightforward man. accept that his motive for failing to do so was not because he only wanted to prosecute the three boathouse owners he thought were violators and let the others get away with violations. It was because he, and council, honestly believed Mr. Nanson was right, and that even though there might be other violators they thought they had prosecuted all of the boathouse violators and did not intend to prosecute other violators at that stage. More diligence could only have resulted in adding one more apparent boathouse violator. While the failure to do that upsets the defendants, it was not done male fides, and the real complaint of the defendants was the decision to only proceed against boathouse owners. 183) accept that council proceeded as it did, not just because of the obvious honesty which thought Mayor McCaig exhibited when he denied suggestions of improper motives, but for additional reasons. 184) First, note that he is of the opinion that sheds are equally as violative of Sec. 197 as are boathouses and council has not prosecuted shed owners. The defendants see that as unfair to them, but do not. accept, as the mayor said, that council had not decided to only prosecute in respect of boathouses, but wished to ascertain the opinion of the court before deciding to proceed against others. 185) Council’s letter to the ratepayers of June 29, 1992 gives reasons for proceeding only with respect to “boathouses”. Whether or not others find these reasons convincing, accept that council saw them as reasonable, and that council was not just picking on boathouse owners. As the letter said, on page 3: “Boathouses often cause the greatest concern because they block people from walking around the shore of the lake, and impair the view of the lake from neighbouring properties.” 186) Next, noted that, in argument, defence counsel could only suggest that the defendants were being prosecuted “for whatever reason”. He could not suggest any male fides as to why council would have picked out boathouse owners to prosecute, nor point to any evidence of any ulterior motive that had motivated the prosecutions, such as existed in v. Miles of Music Ltd. 187) Similarly, there was no evidence that any individual councillor cast his individual ballot, or argued in council, or manipulated other council members so that they voted to prosecuted boathouse owners for improper reasons. Nor is there evidence that anyone else so motivated the councillors. 188) conclude that no improper motives existed, whether or not the defendants, or others, find the councillors’ reasons for deciding to proceed only against boathouse owners convincing. 189) Next, council had complaint, however motivated, from ratepayer, Mr. Zeah, on which they felt obliged to act, whether or not the government, or the police, would do so. No doubt they had pressure from some ratepayers who were worried about how such apparently illegal developments were multiplying, besides those who complained about Kinsmen Beach. 190) Mr. Fraser built his boathouse in the midst of the controversy. That must have been seen as putting council to the test of whether or not they were prepared to try to enforce the law. As Mayor McCaig put it, they couldn’t see their way to only proceeding against Taillons. Thus can see why council chose to proceed only against the three boathouse owners that seemed to them to be obviously in violation. The fact that they did not go against the fourth boathouse owner, when perhaps they should have, does not mean, in my view, that the defence has met the onus placed upon it by the case authorities. It is matter of being less than completely thorough, not matter of such significance that it, even with any other factors on the defence side of the coin, could be said to violate “the limits of community sense of fair play”. 191) note that, according to Mayor McCaig, part of council’s reasons were that “they did not feel that it was financially responsible to dig deeper hole than the one they were already digging”. 192) In my view, the defendants were not selected for prosecution for improper reasons, or even arbitrarily, or capriciously, or for “political” reasons but, because as Mayor McCaig put it, “if we lose, anyone can do anything”. Those are not the words of man indulging in selective prosecution because he “has it in” for boathouse owners or, indeed, only some boathouse owners, rather than shed owners and other possible violators. They are the words of man trying to find out what the law is, in order that council may fulfil its duty to uphold it, because of the pressures being created by various private developments. As he also said, “till we see this one through, we don’t know where we stand”. That, in my view, does accurately reflect his motive and that, in large measure, would also reflect the motive of other councillors. It does not constitute course of action that could be said to violate the community sense of fair play and decency. I find that council proceeded against the defendants it chose because it seemed sensible to them to do so, not because of any mala fides. It was matter of deciding where to draw the line, not of drawing one improperly. 193) Thus, in the end the Defence argument that there has been an abuse of process rests on the fact that nobody else was prosecuted, not on any male fides. 194) can understand why the defendants see themselves as having been unfairly selected for prosecution, but the fact that they see it that way does not make it so. Although “justice” may be said to be in the eye of the beholder, the value judgment as to what violates the community sense of fair play is not to be seen through the eyes of either side alone. 195) Next, defence counsel pointed out that various councillors, including those voting for prosecution, were, themselves, doing thing that might also constitute violations of Sec. 197. As he phrased it, they were “pointing the finger away from themselves”. The implication was, no doubt, that they had motive to prosecute others to avoid attention being focussed on themselves. However, the fact that one offender charges another does not, of itself, necessarily lead to any such conclusion. Policemen have been known to speed. That does not mean they should not be prosecuted. Nor does it provide any reason, in the absence of male fides, why prosecution they lodge against other speeders should not proceed. That is so whether or not they are ever charged themselves, or ever charged each other, least of all where they have legal opinion to the effect that their activities are legal, such as, for example, that it is legal to speed in the course of their duties if it should be necessary to do so. 196) note that many of the councillors who are alleged to have committed violations would not have seen themselves as having done so, given Mr. Nanson’s interpretation of Sec. 197. Moreover, the very fact that the instant defendants were prosecuted created strong possibility that their own activities would be well exposed to public scrutiny and possible prosecution. Thus, in my view, the fact that some councillors may have, wittingly or otherwise, breached Sec. 197, does not provide any reason to stop this prosecution. do not agree that this prosecution can be realistically seen as an attempt to divert attention from their own possible violations. 197) Next, defence counsel argued that the proceedings were abusive because council had laid charges for violation of its own bylaws when it did not really feel they were applicable. 198) agree with the defence position that the zoning bylaws are not applicable to public reserves. also accept that council thought that that was probably the case. Indeed they had the opinion of the department that it was so. However, if the council was going ahead with the prosecution in any event, it made sense to seek the opinion of the Court on the applicability of the bylaws, even if they thought that it would probably be held that the bylaw would not be applicable. 199) Further, it was not unreasonable to ask the Court for clarification as to whether the bylaw applied to cover the contingency that might find that Sec. 197 did not, or that proceedings under it should be halted because of delay by provincial officials. 200) Thus do not see the fact that one count was laid under the Zoning Bylaws as violating the community sense of fair play, etc. If am wrong in that regard, however, it merely means that one count should be stayed. Inasmuch as the defendants are not liable to be convicted on both in any event, there is no enhanced risk of punishment in the procedure adopted. 201) Insofar as the delay in proceedings might be said to constitute an abuse of process, find that the council, as distinct from the government, did not unreasonably delay. Council attempted, quite properly to my way of thinking, to get others to prosecute. That caused delay, but it was not unreasonable. As Mr. Fraser put it, the evidence of the violations continued. Moreover, delay did not prejudice the defendants in any event. On the contrary, they got to use their boathouses. 202) If I am wrong in concluding that the delay did not prejudice the defendants, the delay which I find to be unsatisfactorily explained was by that of the Department of Municipal Affairs, not the council. Their excuse for doing nothing was lack of staff. do not think that even the pre-charge delay by the Government founds an argument of abuse because it was to the advantage of the defendants. They wanted prosecution delayed forever. Thus do not see how they can categorize it as unfair now. 203) Insofar as the Charter gives right to trial within reasonable time, that applies after charge is laid. The delay by provincial officials was pre-charge delay, rather than post-charge delay. As such, it cannot, of itself, give rise to Charter remedy, although it might colour post-charge delay. However, in my view, there were no unreasonable post charge delays in this case, given its complexity. 204) At the end of the day, all that the defendants can complain of, in my view, is that they were the only ones selected for prosecution. They see their selection as unfair, but see it as result of circumstances. They will never be happy unless everyone else is prosecuted. However, they have no legal right to insist upon that, nor does the fact that it has not happened constitute, in the circumstances here, violation of the community’s sense of fair play, etc. The prosecution of them is no more unfair that the prosecution of any other apparent offender selected for test case. 205) am not aware of any law that says that the defendant, in test case or otherwise, has the right to have prosecution stopped until everyone else is prosecuted. It would not make sense to hold that that was the law. It may, after the test case, be unnecessary to prosecute anyone else. That may be so, not so much because everyone would immediately comply with the law as laid down by the Court, but, for example, because there might be change in the wording of Sec. 197, or, because the Municipality might be legally able to sell off the public reserve, or give it back to the Government, or runs out of money for prosecutions. 206) Thus it may be that defence counsel will prove correct in his prediction that others will never be prosecuted, even though the mayor indicates that others will very likely face prosecution. 207) However, even if after this prosecution council does not, for whatever reason, prosecute others, that does not mean that this prosecution should be stopped as being violative of the community sense of fair play, etc. There is no law that am aware of that says speculation on the likelihood of future prosecutions is to colour the fairness of the present one. 208) Thus, in my view, there is no reason to stay these proceedings on the grounds that they constitute an abuse of the legal process, least of all when the defendants, along with other apparent violators, deliberately took their chances on being prosecuted. Was There Violation of Sec. 15 Charter Rights? 209) Sec. 15(1) of the Charter says: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” 210) assume, for the purposes of this decision, that Sec. 15 applies to administrative decisions that violate Sec. 15, as well as decisions by governments. Cf. v. Bob (1991) 88 Sk. R., 302, S.C.A. 211) further accept that defence counsel is correct in arguing that Sec. 15 is not limited to the enumerated types of discrimination. They are simply examples. Discrimination based on unlisted matters is also prohibited, for example, discrimination on the basis of lack of Canadian citizenship as in Law Society of British Columbia re: Andrews (1989) 1989 CanLII (SCC), W.W.R., 289, S.C.C. 212) However, it does not follow that Sec. 15 prohibits all types of discrimination. “Discrimination”, like “justice”, is in the eye of the beholder. The defendants see the prosecution of themselves as discrimination. Mr. Zeah probably sees the Taillons’ illegal actions as discriminating against his “right” to non-obstructed view. The question is what types of discrimination are contrary to Sec. 15. 213) The very nature of law is to discriminate. Criminal law discriminates against criminals. Pension legislation discriminates in favour of the elderly. Some Income Tax provisions discriminate in favour of some persons with an eye to encouraging job creation, etc. In my view Sec. 15 is directed against discrimination that is not acceptable to the prevailing mores, from time to time, of our society. It must be commonly accepted that it is the type of discrimination that is abhorent to the basic principles of our society, such as discrimination based on the listed matters, for no reason that can justify breach of such basic principles. Usually that means discrimination based on bigotry with regard to personal characteristics such as those enumerated. 214) I know of no decision that says that it is discrimination, contrary to Sec. 15, to pick out individuals to prosecute as a test case to ascertain the state of the law, where there is no evidence that it has been done on the basis of improper consideration such as personal characteristics. Thus, in the absence of any such evidence, do not see that selecting the defendants for prosecution engages Sec. 15. 215) Of course, Sec. 15 is not merely concerned with discrimination, but with “equal protection and equal benefit of the law”. However, once again, am not aware of any case which suggests that that means that one is entitled to have prosecution stopped until everyone else that appears to have violated the enactment is also prosecuted. For the reasons I’ve already given, that often would make little sense, even if it was, in the defendants’ eyes, “fair”. There is no law am aware of, to which the defendants can point and claim the “benefit” of, that says that nobody shall be prosecuted unless all apparent violators are prosecuted. 216) Similarly, there is no law that the defendants can point to, as having been violated, so as to deprive them of “equal protection of the law”, unless every apparent offender is prosecuted. 217) Moreover, it will be noted that the right is to “equal protection and benefit of the law without discrimination”. It is not right to equal benefit of the law, even if there was law saying that nobody can be prosecuted unless everyone is. There must be, in addition, showing of discrimination. In my view, there has been no showing of the type of discrimination prohibited by Sec. 15. 218) The defendants can complain that they were selected for prosecution, but they cannot show any discrimination in their selection except the mere fact that they were the only ones selected for prosecution thus far. In my view that does not violate Sec. 15. 219) They face the same risk of prosecution as other apparent offenders. The fact that the risk materialized in their case does not make their prosecution discriminatory. 220) Defence counsel argues the decision in Law Society of British Columbia v. Andrews is to be taken as in holding that the law is not to be allowed to have unequal impact because of irrelevant circumstances, such as lack of Canadian Citizenship being utilized to preclude someone from obtaining license to practise law. 221) doubt that the case is to be read that broadly, rather than simply holding that requiring citizenship as condition of practise discriminated against an identifiable group for unjustifiable, as distinct from irrelevant, reasons. Doubtless those who enacted the law may have felt that citizens might be more concerned to see the laws upheld than non-citizens, and thus do not agree with the holding of the court as to whether it was justifiable. But, at the end of the day, the law did discriminate against an identifiable group on the basis of legal characteristics. That is not an element in the present case. 222) Picking out boathouse builders rather than shed builders is not an example of discrimination of the type prohibited by Sec. 15, as I understand it and the case law. It is not case, like Andrews, where the defendants were denied right to practise their profession, or build what they liked, because of their personal characteristics or legal status, but case where they are chosen for prosecution for reasons that have nothing to do with such things. 223) Thus, in my view, Sec. 15 has not been violated and no stay of the proceedings should be granted on the view that it has been. 224) If am wrong in the conclusion that Sec. 15 has not been violated, would, in any event, decline to stay these proceedings, as do not see that picking these defendants for prosecution, for no apparent improper reasons, from pool of all possible defendants, for the purposes of test case, should result in so drastic remedy on the grounds that it is “appropriate and just”, as is required before relief can be given under Sec. 24 of the Charter. 225) It is true that the defendants here have gone to great trouble and expense to press their view that it is not fair to prosecute them unless everyone else is prosecuted. However, it does not follow that just because they have been selected form pool of possible defendants, that it is “appropriate and just” that the proceedings should be stopped. Whether the proceedings should be stopped cannot turn on how zealously one defends himself. It must turn on how “just” it is that proceedings be stopped. That is not to be seen only through the eyes of the defendant. 226) Thus, in my view, the proceedings should not be stayed, because there has been no violation of Sec. 15 and, if I am wrong in that regard, because, in any event, it is not “appropriate and just” that such a remedy be granted in the circumstances present here. DATED at the City of Prince Albert, in the Province of Saskatchewan, this 6th day of May, A.D. 1994. T.W. Ferris, Provincial Court Judge
The defendants permitted a private building to remain on public reserve lands contrary to s. 197 of The Planning and Development Act, 1983 and the zoning bylaws of the Resort Village of Echo Bay. They contended the bylaws were inapplicable. They conceded the activities may be an offence under the provincial statute, but submitted the selective prosecution should be stayed as an abuse of the legal process, and a violation of their right to 'equal protection and equal benefit of the law without discrimination' under s. 15 of the Charter. Legislation required 10% of land intended for subdivision to be given to the province. This land was designated as 'public reserve', and its use was limited by s. 197 of The Planning and Development Act, 1983. Most public reserves were not developed by the government, but rather by cottage owners. Some cottage owners asserted the public was able to use the construction on public reserve, and allowing such access made such construction things that 'facilitate the use of the reserve as a public recreation area' under s. 197(f) and were legal. In Echo Bay, the subdivision plan created a public reserve in front of cottage lots, vested in the province on October 25, 1983. The provincial Department of Municipal Government ('Department') was to determine what fell within s. 197. The province had no policing mechanism for violations. The Department acted as if maintaining the reserves was the municipality's responsibility, even though the province held title. In August 1986, Mr. and Mrs. Taillon built a boathouse on public reserve. They did not seek permission, as their realtor said they could treat the land as part of their lot. Their neighbour Mr. Zeah complained to Mr. Brickwell, the Senior Planner of the Department. This resulted in an enquiry into if the defendant's activities violated s. 197 or the municipal zoning bylaw. On October 28, 1986, Mr. Brickwell told the mayor that Department officials inspected the site and asked council to request the Taillons remove the structure. Council advised the Department on November 24, 1986 that it was not their land or responsibility. Mr. Brickwell informed council of proposed legislative amendments that would give title and enforcement responsibilities to municipalities. In June 1989, council asked Mr. Fraser to produce authority to construct his boathouse and if not, they would issue a stop work order under the zoning bylaws, even though they believed they did not apply to public reserves. Council was trying to avoid future problems once they heard of the amendments. They received no response and issued an order. Mr. Fraser then contacted Mr. Brickwell who told him there were numerous violations, but enforcement was lacking. Mr. Brickwell said he did not demand the boathouse be removed because, in his view, his Department did not police public reserves. On October 21, 1989, council passed a motion to turn the prosecution of violations of s. 197 over to the RCMP. The province was the landowner and enforcer of the Act, so it was appropriate for the RCMP to assume prosecution. The RCMP declined, and Mr. Brickwell informed council his Department would not act. On January 31, 1991, an amendment to The Planning and Development Act passed which allowed municipalities to take title and passed responsibility for prosecuting offenders to local councils. Echo Bay took title on July 6, 1992. On February 21, 1991, council's solicitor requested the defendants and the Fosters to remove their boathouses by June 31, 1991. The Fosters complied, but the defendants did not. On November 16, 1991, council proceeded with the action. Although council believed the boathouses were illegal, the Taillon boathouse was assessed for property taxes. Council believed they must prosecute offenders to fulfill their duty to uphold the law, discourage further violations, and ensure public reserve lands were open for public use. The defendants believed either none or all violators should be prosecuted. Council stated it was wiser to prosecute only boathouses to obtain the court's opinion. If council was correct, it may not be necessary to prosecute others because they might comply with the law as expressed by the court. If the court did not agree, council should not incur any further expense. Council asserted prosecution of boathouse owners was appropriate as boathouses caused the complaint, and they were clearly private. The defendants view their selection for prosecution out of a numerous violators as unfair and discriminatory within the prohibition of s. 15 of the Charter. HELD: A municipality may further restrict uses of reserve land, but it cannot allow uses not permitted by s. 197. Taxing the boathouse was immaterial and did not imply approval. The defendants were not misled as to their legal rights by a person in authority. The Taillons could not have believed the opinion of the realtor; they knew they did not own the land. Mr. Brickwell's comment that there were numerous violations being ignored could not be taken to mean the defendants were able to build on public reserve. It was an opinion that they might escape prosecution. The case turned on whether it was an abuse of the legal process to prosecute the defendants when other violators were ignored or a case of violating their rights under s. 15 of the Charter. How unfair it was depended on how many violators were overlooked which turned on the reading of s. 197. John Nanson, the Principal Planner of the Community Planning Services Branch, believed things on public reserve available to the public were not violations of s. 197. The court did not accept this view as it allowed citizens to determine what constituted a 'public facility' and required council to launch civil actions to remove private construction. If this was intended, no offence would be created in the first place, and the titleholder would just be left with civil remedies. An interpretation which allowed private citizens to effectively turn public reserve into private land defeated the legislation's objective. The fact that the titleholder was the province or a municipality and the use of the word public indicated the legislature wanted the government authority to decide what constituted a public facility. It cannot be public unless it was authorized or actually built by the government authority and was open for public use at all times. If the legislation was interpreted as Mr. Nanson suggested, then there were fewer violators. This made council's decision to prosecute only boathouses less unfair, and it did not give the defendants a defence as the boathouses were not open for public use. They constructed a private building on public reserve contrary to s. 197, therefore the boathouses were illegal under s. 221(1)(a)(ii) of the Act. The defendants were guilty unless prosecution was stayed as an abuse of process or because it violated s. 15 of the Charter. Council prosecuted defendants whom they saw as committing clear violations. To prosecute all violators initially would add expense at no benefit. A decision on boathouses was likely to lead to the desired clarification of the law. They had a complaint upon which they had a duty to act and wanted a test case to determine the legal position. Selective prosecution, per se, is not an abuse of process; rather it depends on the circumstances. The defendants must show they were singled out unfairly, not just that they were singled out. There was no such evidence. Stopping prosecutions for abuse of process is a power only to be used in the 'clearest of cases' (R. v. Keyowski). The defence must show that proceeding exceeds 'the limits of the community sense of fair play' and the administration of justice is best served by stopping the prosecution. In R. v. Rourke, the SCC said there was no general discretion to stay proceedings because they were considered 'oppressive'. In R. v. Jewitt, the SCC adopted the test from R. v. Young that 'there is a residual discretion in a trial judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency, and to prevent the abuse of court's process through oppressive or vexatious proceedings'. Picking out defendants to prosecute from a pool of offenders to ascertain the legal position of the parties because one of their group has been the subject of a complaint did not violate 'the community sense of fair play and decency'. The defence relied on Regina v. Miles of Music Ltd. where the court said that 'no cause can fall within the category of the Ã¦clearest of cases' unless it can be fairly said that the cause of the apparent unfairness complained of can be Ã attributed to either the police or the Crown or both'. The defence said council not only did not prosecute, but did not investigate whether others were in violation. The court acknowledged this was so, but accepted the motivation was that council believed Mr. Nanson, and they did not currently intend to prosecute all violators. The defendant's real complaint was the decision to only prosecute boathouse owners. Council was trying to ascertain the law, so they could fulfill their duty to uphold it. The court found council proceeded against the defendants because it seemed sensible and financially responsible to do so, not because of any male fides. The municipal bylaws were not applicable to public reserves, but it made sense to seek the court's opinion on their applicability since council was going ahead with the action. The fact that one count was laid under the bylaws did not violate the community sense of fair play, but if it did, this would mean that count should be stayed. Council rightly attempted to get others to prosecute which caused a reasonable delay and did not prejudice the defendants. Any unsatisfactory delay was caused by the Department and not council. The Charter gives a right to a trial within a reasonable time, but this applies after a charge is laid. The delay by the province occurred pre-charge. There was no unreasonable post-charge delay or abuse of the legal process. Section 15 of the Charter is not limited to the enumerated types of discrimination, but it does not prohibit all discrimination. It must be commonly accepted discrimination abhorrent to the basic principles of society with no reason that justifies a breach of such principles. It was not discrimination contrary to s. 15 to select individuals to prosecute as a test case where it was not done for improper reasons.  'Equal protection and equal benefit of the law' did not mean one was entitled to have prosecution stopped until all violators were prosecuted. Picking out boathouse builders was not an example of discrimination prohibited by s. 15. The defence argued the law was not allowed to have unequal impact because of irrelevant circumstances (Law Society of British Columbia v. Andrews). This case should not be read so broadly. In the court's view, the proceedings should not be stayed because there was no violation of s. 15, and if the court was wrong, it was not 'appropriate and just' that such a remedy be granted, as required for relief under s. 24 of the Charter.