Charges laid for alleged damage or destruction to Massasauga snake habitat
The Ontario Superior Court of Justice has dismissed an application seeking extraordinary remedies – including mandamus, prohibition, and certiorari – brought by applicants facing charges under Ontario’s Endangered Species Act, 2007 (ESA).
The first charge against the applicants arose from allegations that their work unlawfully damaged or destroyed the habitat of the Massasauga snake, a species listed as threatened under the ESA. The second charge alleged that they unlawfully attempted to damage or destroy this habitat.
The applicants’ work included activities such as cutting trees, moving stumps, and clearing vegetation in preparation for a planned cottage subdivision in Seguin Township in Ontario. The applicants failed to obtain a permit under s. 17 of the ESA, which would have authorized such activities.
The applicants brought numerous pre-trial applications, including a disclosure application alleging violations of their rights under ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. In July 2019, they requested materials from the Ministry of Natural Resources and Forestry (MNRF) relating to other land development projects involving endangered species.
The justice of the peace overseeing the case treated these materials as third-party records and required the Crown to ask the MNRF about their availability. The Crown provided the requested materials in February 2023.
In February 2024, the applicants filed an application alleging that the late disclosure violated their s. 11(b) rights to a trial within a reasonable time. They argued that the justice of the peace’s failure to decide on their abuse of process application before ruling on the s. 11(b) application amounted to a substantial wrong or miscarriage of justice.
The applicants also asked for relief under s. 24(1) of the Charter. They claimed that the delay in their case was egregious and warranted the intervention of the Superior Court.
In 25555 Ontario Inc. v. Ontario (Environment, Conservation and Parks), 2024 ONSC 4499, the Ontario Superior Court of Justice dismissed the application for extraordinary relief and refused to grant interim Charter relief. Thus, the proceedings against the applicants under the ESA would continue.
The court emphasized that certiorari would only be available in narrow circumstances, such as when an error involved jurisdiction. In this case, the applicants failed to establish that the justice of the peace either exceeded or failed to exercise his jurisdiction, the court ruled. The decision to defer ruling on the abuse of process application was within the justice of the peace’s discretion, the court held.
The court then addressed the applicants’ argument that the Crown was at fault for the entire delay between July 2019 and February 2023 due to the late disclosure. The court found that the justice of the peace had properly attributed only three months of delay to the Crown, given that the applicants had not been diligent in pursuing disclosure.
Specifically, this delay was due to the Crown's failure to immediately inquire about the disclosure request after the applicants had narrowed their request during the first day of the disclosure hearing in September 2022, the court explained.
The court also refused to grant relief under s. 24(1) of the Charter. The justice of the peace correctly applied the principles set out in case law and considered the relevant factors, including the complexity of the case, the impact of the COVID-19 pandemic on court operations, and the actions of both the Crown and the defence, the court said.
The court concluded that the justice of the peace’s findings were reasonable and that the matter should proceed through the normal appeal process rather than through an interlocutory appeal.
