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Monday, July 22, 2013

Manitoba Court of Appeal upholds convictions for maintaining illegal trenches

Employees from the Department of Natural Resources (DNR) in Manitoba had investigated the unauthorized draining of wetlands on a farm in 1998.  The landowner obtained licenses from DNR for four specific wetlands, but the licence for Wetland #1 prohibited any drainage.  In 2000, a man-made trench draining Wetland #1 was discovered.  A charge was laid by the DNR, but subsequently stayed.
 
By 2008, it was discovered that both Wetlands #1 and #2 had been completely drained with two man-made trenches, neither of which had been authorized by DNR.  Wetland #1 appeared to have been cultivated and worked through with farm machinery.
 
The landowner was charged under the Water Rights Act with two counts of establishing or maintaining illegal trenches without a licence.  The trial judge convicted the landowner and fined him $1,500 on each count.  Although he determined that there was no evidence that the landowner had established, constructed or actively maintained the trenches, the trial judge decided that the fact that the landowner knew about the existence of the trenches and did nothing to eliminate them was evidence of passive maintenance sufficient to support the convictions.
 
On summary conviction appeal, the appeal judge determined that passive acts of maintenance were not sufficient to support convictions, but nevertheless upheld the convictions because: 1) for the first trench, there was evidence that a crop was planted and harvested there, meaning that the trench was actively maintained; and, 2) for the second trench, because it had not previously existed, the only reasonable inference was that it had been established or constructed by the landowner.

At the further appeal before the Court of Appeal, the Crown conceded that the summary conviction appeal judge had erred by upholding the convictions on the basis of facts not supported by the trial record.  There was simply no evidence that the appellant landowner had constructed or established the second trench in the time period cited in the charge or that he had planted and harvested in the first trench.  The question on the appeal therefore turned on the effect of "passive maintenance".

The appellant landowner argued that the prohibited act or "actus reus" of the offence required proof of active maintenance of the trenches; the Crown argued that keeping the trenches in existence without active maintenance would be sufficient.  The Court of Appeal agreed with the Crown's position and ruled that "maintenance" included keeping the trenches in existence without active maintenance.  The Crown did not need to prove that the landowner knew the trenches were on his land or that he actively maintained them.

Read the decision at: R. v. Dickson (W.A.)