Cite as: R. v. Provincial Foods Inc., 1992 NSCO 4 PROVINCE OF NOVA SCOTIA COUNTY OF HALIFAX IN THE COUNTY OF DISTRICT NUMBER ONE
BETWEEN: HER MAJESTY THE QUEEN - PROVINCIAL FOODS Ms. Nadine Smillie, counsel for the Appellant. Winston Cole, Esq., counsel for the Respondent. 1992, January 29th, an appeal from a decision Batiot, a Judge of the Provincial Court, of August, A.D., 1991, wherein that he: " did unlawfully located at civic number 100 Leiblin Drive, Halifax, for preparation, assembly prepared vegetable products without first obtaining therefore pursuant to section Ordinance 131; " AND FURTHER " did unlaWfully located at civic number 100 Lieblin Drive, Halifax, for ,
preparation, assembly, C.H. No.: 75672 COURT
Appellant and INC. Respondent Palmeter, C.J.C.C.: This is of His Honour Judge Jean Louis dated the 23rd day he acquitted the Respondent occupy the building the manufacturing, and packaging of an occupancy permit 8 of Halifax City use the building the manufacturing, packaging of
- 2 prepared vegetable products of section 24 (3) of City of Halifax Land Use Bylaw, Mainland section 22(1) of the Planning Act. " After reading the the facts to be as follows: The Respondent, prior for a number of years in the preparation and sale of vegetables at a location at 10 Akerley Industrial Park in Dartmouth, Nova Scotia. In the fall of 1989 of the Respondent, in looking for his horne, located a possible in the City of Halifax. Mr. and was made aware that the a number of non-conforming uses to the existing by-laws since the area was annexed to the probably for many years prior to that time. to have discussions with the if his proposed use could be carried Leiblin Drive. in violation Area, contrary to transcript I would determine to June 1990, was involved Boulevard in the Burnside one Brian Wales, President a new location closer to new site at 100 Leiblin Drive Wales talked to the landlord premises had been occupied as City of Halifax in 1969, and He was advised City of Halifax to determine on in the premises at
• , - 3 In October 1989 Mr. of the Building Inspection Unit at the City apply for a building permit and an occupancy permit to operate his business at 100 Leiblin is somewhat sketchy as to this meeting, it can that Mr. Wales referred to his existing premises in Dartmouth ~nd indicated that the Respondent "sold prepared vegetables". He discussed the application an applications clerk in the responsibility of dealing with applications. Ms. MacDougall whether the sale was retail or wholesale and, after questions, determined that the application "retail sale of prepared vegetables." Following these applications Mr. dealings with various inspectors and with one Ms. J. Lavallee of the Nova Scotia Department of to Mr. Wales that no building would be issued until approval of all necessary City of Halifax Departments and the Atlantic Health Units was obtained. Wales attended at the offices of Halifax to Drive. Although the evidence be assumed with one Sandra MacDougall, Department, who had the applicants and accepting questioned Mr. Wales about should be for occupancy for Wales had numer.ous from the City of Halifax of the Atlantic Health Unit Health. It was made clear permit or occupancy permit
- 4 It is clear from the transcript that the Respondent type of business from the City of Halifax or from the Atlantic Health Unit and, in fact, Ms. premises of the Respondent at Department of Health approval the Respondent. Finally on July 11th, issued an occupancy permit signature of H.A. MacEachern, to occupy space at 100 Leib1in of prepared vegetables." The of the premises and continued which it had operated in Burnside. Apparently as a result complaints by residents in the Drive, the City of Halifax wrote to the Respondent requesting it discontinue its preparation activities. Inspector for the City of Halifax visited at least two occasions, noticed did notice considerable vegetable preparation activity as a result, charges were laid. ..
evidence contained in the did not attempt to hide its Lavallee had visited the Burnside before giving the to the City of Halifax and 1990, the City of Halifax to the Respondent under the Manager Building Inspection Drive for the "retail sale Respondent took possession the same type of operation of some inquiries and neighbourhood of 100 Leib1in Later a Building the premises on no retail operations but and,
, The charges were Batiot and by a decision dated August 23rd, the Respondent of both charges. activi ties carried on by the Leiblin Drive were not the occupancy permit, but invoked officially induced error on the part of the City of Halifax and, accordingly, acquitted the Respondent. The grounds of appeal as set out in the Appellant's factum are as follows: , 1. THAT the Learned in law in applying officially induced error; (a) the finding error is not supported by the facts. (b) that Ms. MacDougall's did not give rise officially induced error. (c) Ms. Lavallee's give rise to the induced error. - 5 heard before His Honour Judge 1991 he acquitted He basically held that the Respondent in the premises on activities authorized by the the common-law doctrine of Trial Judge erred the defence of of officially induced involvement to the defence of involvement did not defence of officially
- 6 2. THAT the Learned in law in acquitting the Respondent after deciding that the actual occupancy were contrary use and legal occupancy. (a) the application officially induced an excess of jurisdiction. (b) the conclusion JUdge was not supported as found by the Court. Judge Batiot in his in my opinion, properly identified at trial, namely; 1. Whether or not the which was granted, in fact, activity carried on, and, 2. Whether or not should be bound by Mr .. Wales was mistakenly he could carryon the was presently carrying on. Trial Judge erred use and actual to the legal of the defence of error resulted in made by the Trial by the facts carefully reasoned decision, the two issues raised occupancy permi t covered the the City of Halifax the allegations that led to believe business that he
,
The first issue was answered and the second issue in the affirmative. Appellant is related strictly basically do not intend to direct myself to any degree. Counsel for both the Appellant have filed excellent factums particularly as it relates In particular I agree with the the Appellant on page 4 of her facum where , defence of officially induced a charge under a regulatory exception to the principle that ignorance of an excuse. With an officially person has attempted to conform to the by the very officials charged with its administration." One of the leading cases in Nova Scotia on officially induced error is the case of (2d) 249, decided by O'Hearn, a charge of driving while disqualified 238(3) of the Criminal Code and the learned trial judge found , that the defendant, in acting 7 by his Honour in the negative The appeal by the to the second issue and I to the first issue and the Respondent relating to this appeal and to officially induced error. comments made by counsel for she states, "The error is available to defeat statute. It is a common law the law is not induced error of law, the law, but is mislead R v. Flemming (1980) 43 N.S.R. C.C.J. That case involved under then Section from advice received from
- 8 officials at the Motor Vehicle mens rea to be guilty of the offence. At p. 272 of the report two requirements for defence as follows: "( I) that the official is followed is administration of the so that it is reasonable circumstances, to follow his opinion; (2) that the opinion, appear to be reasonable circumstances." In dealing with the question O'Hearn, in his usually well-reasoned pp. 273 - 274 : "The condition qiving the misleading ln the administration question is suggested, need to conform as to the policy of the possible to consult the courts as to what done, at least in the and the official legislation, is accordingly available source of closest to the Throne. the English and Canadian attitude towards this type of offence is Branch lacked the necessary Judge O'Hearn identified of officially induced error whose advice involved in the law in question, in the itself, should in the of who is an official Judge decision, stated at that the official advice be engaged of the law in I think, by the closely as possible maxim. It is not the legislature or should or may be ordinary course, administrating, the the best informatiOI. and the (One reason for undoubtedly the
, tradition that the wrong and no one is authori zed for the sovereign except by statute, of final appeal). This does not official involved of official would by the background a considerable extent, it would have to if it is not to of the maxim. With I would doubt that provincial government authori tative answer to· such so I would be tempted the practice was prosecutions, either in charge of traffic la~ , of the local R.C.M.P. City Police, or lawyer involved in eitherin the Department General or in the Halifax City Solicitor's Office. I doubt, non-lawyer would in this way. It is the ordinary citizen official in the concerned with drivers licenses and driving standards, and that seems to be precisely what the defendant case. The evidence admittedly not very was undoubtedly by the learned trial not prepared to in view of the knowledge in Nova Scotia about the function of the bureau mine) In her brief, counsel that the clerk, Ms. MacDougall, (., - 9 sovereign can do no to speak in such circumstances or, possibly, a court necessarily limit the narrowly. The choice probably be determined of the questioner to although again, be a reasonable choice contradict the policy my legal background any official in the could give an a question, to find out what with respect to from the N.C.O. enforcement of the Halifax I might try to find a traffic prosecutions of the Attorney however, that a approach the problem more likely that would approach some Motor Vehicle Branch did in the instant on the point is expansive, but it considered sufficient judge, and I am say that he was wrong, background of common mentioned." (emphasis for the Appellant submits was merely an applications
- 10 clerk in the Building Inspection Halifax, was not involved in and was not in effect an "official" requirements for the defence of officially induced error.. The learned trial judge held that Ms. MacDougall was such an official and to come to' the conclusion that the Respondent really have contact Inspection Department. The she made the suggestions and of the application. Even th0ugh non-conforming use to which the was still a layman and relied upon the City of Halifax, through its employees to give him proper advice as to what could put the premises. This the comments of Judge O'Hearn to "conform as closely as possible to the policy to the maxim." Was it reasonable for official's opinion? The learned trial was. In considering the case Flemming, I would agree and can of Judge Batiot in coming to also agree that the opinion reasonable in the circumstances. Division of the City of the decision making process as envisaged by the in his decision certainly I am unable he erred. Who else would with in the Building clerk took the applications, cooperated in the filling out Mr. Wales knew of the premises had been put, he use he is surely corroborative of in Flemming when he refers Mr. Wales to follow the judge found that it before him, in light of find no error on the part these conclusions. I would itself would appear to be
The Appellant has officially induced error is not presumably it means the evidence adduced. of the Appellant that the receive complete information or, in the alternative, that she I do not accept the latter contention because indicates that Mr. Wales did business or the activity which would premises from the Health Department Building Inspectors during the application period the permit was granted. Other members of the City of Halifax (,
Building Inspection staff intentions aside from Ms. the City should be presumed to be aware with the Health Department issued without Health approval. In his decision at p. found that "Mr. Wales fully Ms. MacDougall, on behalf inaccurately on the occupancy - 11 submitted that the defence of supported by the facts and It is the contention Clerk, Ms. MacDougall, did not from Mr. Wales as to the use was mislead by Mr. Wales. the evidence nothing to hide his type of be carried out on the or the City of Halifax and before were aware of the Respondent's MacDougall and, in my opinion, of the negotiations because a permit could not be 10, the learned trial judge described his operation which of the City, then defined permit application." It is
- 12 true that the evidence as to description is somewhat scanty, but there was evidence before the learned trial judge to enable him to come to his conclusion. find that he erred in this conclusion. subsequent dealings with the the Health Department lend credence Wales did describe his operation to Ms. Accordingly I find that did not err in law in applying induced error. The second issue raised the learned trial judge erred Respondent after deciding that occupancy were contrary to the legal use and legal occupancy. The Appellant suggests that the learned trial judge in effect granted a license to offend and thereby exceeded his jurisdiction. In addition the Appellant officially induced error should offence~ and not to those of a continuing nature. of the operation I cannot In my opinion the City Building Officials and to the fact that Mr. MacDougall. the learned trial judge the defence of officially by the Appellant is that in law in acquitting the the actual use and actual by acquitting the Respondent argues, defences of only be confined to isolated
- 13 It is ·true that if the acquittal of these charges is permitted to stand the City of Halifax will be prohibited from succeeding on subsequent charges against the Respondent for the activity charged. I . cannot acce~t, there should be, or that there is similar act violation or a continuing defence of officially induced error accept the argument of counsel effect that the continuance of one set of facts and not a continuing license to break the law. (., The arguments of the Appellant on this second issue have not convinced me that the in law. I will, accordingly, will be the usual order as Respondent. ~JUdge of the County Court of District Number One however, that a distinction between a violation once the has been made out. I for the Respondent to the a non-conforming use is really learned trial judge erred dismiss the appeal. There to costs in favour of the
PROVINCE OF NOVA SCOTIA COUNTY OF HALIFAX C.H. No.: 75672 I N THE COUNTY COURT OF DISTRICT NUMBER ONE BETWEEN: HER MAJESTY THE QUEEN Appellant - and -PROVINCIAL FOODS INC. Respondent ON APPEAL FROM THE PROVINCIAL COURT HEARD BEFORE: Judqe Jean Louis Batiot PLACE HEARD: Halifax, Nova Scotia (Spring Garden Road) DATE HEARD: May 28, 1991 . .;
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