Case Law Has Its Limits by Robert Pattison

Published March 1, 2018

It has been an interesting week when it comes to property law.

At Pattison Legal Services half of our work is associated with representing clients charged under Ontario’s Highway Traffic Act, seeking remedy via Small Claims (debt collection and tort) and Municipal By-law infractions. The remaining 50% of our efforts are devoted to assisting landowners caught in Ontario’s convoluted property tax regime (MPAC) and untangling their lives from Ontario’s Conservation Authorities Act complexities.  The past week is notable for the number of calls we received from landowners either charged or issued Violation and Compliance Notices by one or more of their local law enforcement officials.

A common question is often raised:

“Can they really charge me with that?  What about the case law of: ABC v. the Municipality of Rubber Boot? How can they charge me when we have case law on our side ! ! ?”

And the answer is always the same: “Yes, they can charge you.  The ‘They’ are the government. They have the guns and shackles and prisons. They can do whatever they want.[1]  Whether it is ‘lawful’ for the government to do so or whether the mindless, unoriginal, joy sucking bureaucrat, the agent of mediocrity and the constipation of society misused his or her discretion—is a separate question altogether. But, yep—they can charge you no matter how much case law you have at your disposal”

Case law does not provide a license to violate the law.  No matter how we may find the law personally restrictive, oriented towards anti-property rights or morally reprehensible, case law does not provide permission to violate the law. The government makes laws (far too many laws, in my opinion).  And ‘They’—the government, can enforce their laws with as much violence as they see fit.

Bill 139—written by the Liberals and supported by all members of Queens Park, including the Conservatives—save Jack McLaren’s lone voice, is a major step towards the eradication of property rights in total. Crushing property rights is a hallmark of totalitarian governments and the Ontario legislation has provided marching orders to every level of government agency to violate the right to enjoy private property unmolested.

So, the question should not be: “Can they charge me?”

The questions need to be: “I have violated the government’s dictates.  Now that I’m charged, do I have a defence?” 

And critically: “How far am I willing to go to defend my rights against an unjust law?”

The answer to the first question involves legal analysis to determine if the government/municipality/conservation authority has violated its own laws, acted ultra vires (over-stepped their authority) and how the facts of each individual case applies to the law.  Introducing ‘case law’ at the trial, now informs the court of how the government body has erred and why the charges should be dismissed.  And when skillfully argued (cross-examination etc.,), case law can open the door for a suit against the municipality as a corporate body or against the by-law/building official—personally, for misfeasance of public office.  The miscreant public official has caused you harm. They need to pay.

The second question addresses the individual’s perceived importance of what is right or wrong.  I have clients who have recognized that Conservation Authorities do not have legitimate claim to re-zone private property ‘wetlands’ without compensation, for instance, but have simply chosen to pay a fine and move on.  No trial, no case law nor argument.

Other clients believe so strongly in their rights, they will defend their position to the bitter end resulting in good case law.   Remember, the government does not believe in property rights, so they will vigorously fight any challenge to their authority.

Let us not misinterpret what Liz Marshal’s research has discovered or dismiss the benefits found in court rulings (case law).  We must remember though; that no matter what another OLA member or a Freeman of the Land infiltrator may say, case law will not prevent a government, particularly a government (and official opposition) bent on imposing an anti-private property ideology—from laying charges.

No more than quoting R v. Pontes[2] will stop a OPP officer from issuing a traffic violation notice.  Road side charges will be laid. Period. Pontes may then offer a defence—in Court.

Given that Bill 139 now allows for imprisonment for violating sections of the Conservation Authorities Act.[3]; I believe there are only 3 options available to private property owners when wanting to develop their property:

  1. You can abandon the idea of improving your property completely and build nothing.
  2. You simply enquire at the local office and pay all the fees, permits and studies required of you without argument and build knowing the officials will intrude during the project under whatever circumstance and whenever the notion strikes them.
  3. You make application, striking out any unjust clause and proceed, knowing you will probably be charged with violating some law along the way but giving you an opportunity to fight for what is right. You have to ask: How far am I willing to go to defend my rights, knowing that if found guilty I may face incarceration.

One option you don’t have is relying upon Free Willy’s advice of how to violate the law and stay out of jail by citing case law to the By-law of Provincial Offences Officer.

Pattison Legal Services is not offering legal advice.  The commentary and opinion included above is for discussion only.  We encourage anyone considering a construction and or land alteration project to consult a paralegal or lawyer before proceeding.

[1] For a current glimpse of what government in a civilized country can do, in an attempt to re-write history; visit: http://www.bbc.com/news/world-europe-42920934

[2] https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1287/index.do

[3] http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=4936  See Part 1, Conservation Authorities Act  amendments: section: 30.5(2)

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