In what appears to have started as a dispute between two neighbours who don't like each other, a justice of the peace has overturned a Hanmer man's bylaw conviction for putting snow from his property onto the road last winter.
The man's neighbour lodged a complaint to Greater Sudbury in November, accusing him of using his tractor to clear snow from his property and placing some of it on nearby Notre Dame Avenue.
That would be an apparent contravention of the city's Road Fouling Bylaw, which was passed in 2011. Among other things, it prohibits residents from clearing snow from their property by placing it on the road. It carries a fine of $85 under the Provincial Offences Act.
The neighbours “share a history of neighbour disputes that have led to other legal proceedings and resulting orders,” the justice of the peace wrote in his decision. “Whether this unfortunate history helped fuel the complaint … was not material to the outcome of this trial.”
At the March 2019 trial, photographs of the tractor equipped with a front-end loader and roadway were shown.
The man admitted he loaded it with snow from the area of his driveway and transported it across Notre Dame Avenue and dumped it the ditch on a narrow strip of land between a school fence and Notre Dame Avenue.
“He repeated the process a number of times on that occasion,” the court transcript says. “In the process of transporting the snow, some would have ended up on the travelled portion of Notre Dame Avenue ... That amount of snow was relatively small as compared to the amount he dumped in the ditch. He removed the snow that ended up on the travelled portion of the avenue without delay.”
When he was done, the transcript says the plowed portion of Notre Dame wasn't affected.
The justice had a few issues with the bylaw conviction. First, he ruled the city failed to prove the bylaw was in effect at the time of the incident, something they are legally required to do in a specific way.
Provincial regulations require either a copy of the bylaw “certified by the clerk of the municipality and under the seal of the municipality,” or a copy of the bylaw that includes “the seal of a municipality and signed by head of council or presiding officer at the meeting at which the bylaw is passed.”
Failing that, both the prosecution and the defendant must both agree the bylaw was in effect.
In this case, the city only provided a copy of the bylaw without the proper certification. While the justice acknowledged this could be viewed as a technicality, he wrote the rule is written into the legislation and the prosecution failed to meet its obligation under the law.
While that was enough to find the man not guilty, the justice wrote that in any case, there was not enough evidence for a conviction even if the bylaw was in effect.
There's no doubt he transported snow across Notre Dame and left it in the ditch across the road, but the justice ruled the prosecution failed to prove “whether that specific location was on a highway or part of a highway as defined in the bylaw.
“Proof beyond a reasonable doubt is a high standard that was simply not met on this point,” he wrote. “No plans, maps, drawings or diagrams of the relevant portions of Notre Dame Avenue were put into evidence.”
There was proof that some snow was left on the highway while the tractor moved back and forth, the justice wrote, and technically that is a violation of the bylaw.
But under the due diligence defence in Canadian law, a person can be found not guilty of a provincial offence if they can prove they took “all reasonable steps” to ensure their actions would not cause harm.
At the trial, evidence emerged that whenever the man removed the snow and dumped it in the ditch on the other side of the road, he was careful to remove any that was left on the highway – and his wife would remind him to go back out and clear it if he had missed any.
And the bylaw officer who served him the conviction notice didn’t see any snow on that part of Notre Dame Avenue. While the prosecution argued that it's still illegal to break the law regardless of how careful you are, the judge pointed out they had failed to prove the man had dumped any snow onto the highway.
As a result, the justice was satisfied that the due diligence defence had been established.
“A relatively small amount of some snow nonetheless escaped his control and ended up on the avenue,” he wrote. “He cleaned it up without delay. As a result, he was also 'not guilty' of the specific offence charged on the merits of the case.”
Read the full transcript here.