by CONNIE TABBERT
Editor
PEMBROKE — A decision was handed down in provincial offences court yesterday, but there’s still no decision as to whether or not the Whitewater Region municipal bylaw that people must purchase dog tags is legal.
John Felix Cull and Gary Burns were charged under the municipal bylaw because they hadn’t purchased a dog tag for their dogs by August and September 2013, respectively. They decided to fight the charge and ended up in court.
For the past 30 months, there have been delays by the defence, the prosecutor and the judicial system.
The trial for the dog tag bylaw was scheduled for Wednesday, Thursday and Friday of this week. However, before the court case could begin Wednesday morning, Justice of the Peace Nancy Mitchell heard a motion under Section 11b of the Canadian Charter of Rights and Freedoms, which states a person charged with an offence has the right to be tried within a reasonable time. The defence requested the charges be stayed because the case was taking too long to go to trial.
After listening to paralegal Jeff Bogaerts and prosecutor Jessica Fuller, who was representing the municipality, Justice of the Peace Mitchell ruled in favour of the Charter 11b application filed on behalf of Mr. Cull and Mr. Burns.
The municipality has 30 days to appeal the decision.
The Whitewater News provided Mr. Burns, Mr. Cull and Doug Schultz, bylaw enforcement officer for Whitewater Region township, the opportunity to talk about the decision after it was handed down.
“I’m glad to see it finally come to an end,” said Mrs. Burns. “It was a long journey. It should never have gone on this long. Common sense was used.”
She questioned the reason for the case dragging on.
“The prosecution did not want the answer to come out,” she answered. “We went to court for a reason, expecting it to go to trial right away.
“We felt in 10 months it would be over.
“Thirty months later and we still didn’t get an answer,” Mrs. Burns noted, adding, “We never dreamed it would last this long.”
This was a huge expense to the municipality at the taxpayers’ expense, she said.
Mrs. Burns said while there still has been no decision regarding the dog tag bylaw, she maintains that the municipal act provides that the municipality can have bylaws dealing with impounding or muzzling dogs, but it does not have authority to mandate dog identification.
She praised Justice of the Peace Mitchell for seeing the ridiculousness of this case, noting that even if it did go to trial, and if found guilty, would only have been a $75 fine for Mr. Cull and Mr. Burns.
Mrs. Burns is still hopeful council will see she wants to work with them, in helping them to understand various situations within the municipality and how they must see both sides of a story.
“I’m extending the olive branch to them again,” she said.
There has been a change-over in staff and “it appears to me, council is not properly informed and that means they are failing to do their job.”
Mrs. Burns said she will continue to work towards her goal of ensuring property owners are educated so they are able to make good decisions.
When asked how much the legal bill is for the municipality, treasurer Marsha Hawthorne said that figure is not yet available.
Prior to the decision being handed down, Mr. Bogaerts provided affidavits by Mr. Cull and Mr. Burns, along with case law, as to why the proceedings should be stayed under Charter 11b.
Mr. and Mrs. Burns have lived in this community for years and Mr. Burns’ parents were lifetime members of it as well, Mr. Bogaets said. Mr. Burns is a truck driver, with a speciality in road building equipment. He operates a 110-acre farm with his wife, who is retired after 28 years with the OPP. Mrs. Burns has sat on numerous community committees. They are both grandparents and are involved in their community.
“They were brought up Canadian,” he said. “They were brought up knowing the difference between a right and a wrong.
“They were brought up with an ethic that if something is wrong do something about it.”
This case began when Mr. Burns decided not to pay the $15 dog tag.
Mrs. Burns did research and discovered that purchasing a dog tag is not necessary and tried to advise council of what her research showed, but, council would not listen to her, Mr. Bogaets continued.
Mr. Cull and his wife Jean, who recently retired, are parents and are awaiting the arrival of their first grandchild, Mr. Bogaerts said. They own a 220-acre farm and Mr. Cull has been operating his own business for 17 years. He is also a Whitewater firefighter and is a retired OPP auxiliary officer.
This case has been before the courts for 30 months, Mr. Bogaerts said. It was in September 2013 that Mr. Cull received a summons from the township that he was in violation of the township’s dog tag bylaw.
Since then, both families have suffered financially and emotionally, he said.
“This has affected Mr. Cull’s business because people in the community see him as someone who is making waves,” he said. “He has spent an exorbitant amount of money for a principle.
“Mr. and Mrs. Burns have spent a substantial amount of money fighting this.”
They are both experiencing spousal and family issues, Mr. Bogaerts said.
“Mr. and Mrs. Burns would rather spend time with their grandchildren and horses.”
Mr. Cull and Mr. Burns believe the length of time this case is taking has been prejudiced against them, he said, adding, it is whittling away at their belief in the justice system.
“They just want to go home and be left alone,” he said. “They are tired of fighting.”
Even after Mrs. Burns reached out to council about how her research shows the bylaw is flawed, they ignored her and opted to spend tens of thousands of dollars on a dog tag, Mr. Bogaerts said.
They have tried to resolve the issues over the past 30 months, but to no avail, he said.
“We are on the cusp of a multiple-day trial,” Mr. Bogaerts said. “We are not talking criminal charges here. We are not even talking provincial offences. This is a bylaw of a corporation of a municipality for a dog tag.”
People in the community have asked Mr. Cull and Mr. Burns why they are fighting this dog tag bylaw and their answer remains the same, he said.
“They are old-style Canadians who believe in principles,” he said.
However, they have run out of steam, he added.
“They have become tired, frustrated, angry, fed up and disheartened,” Mr. Bogaerts said. “They are looking at the big picture and saying, why are we doing this?
“Why are our elected officials paying money to defend a bylaw? Why has there been no remediation?
“This case has gone on long enough. No good is going to come from this. No justice is going to come from this.”
While there are laws, it’s not always necessary to live by the letter of each one, he said.
Mr. Bogaerts then focused on various dates of what has transpired since the summons were issued back in August and September in 2013. He also provided case law as to why Charter 11b should be in favour of Mr. Cull and Mr. Burns.
When he finished, Ms. Fuller had opportunity to respond to Mr. Bogaerts’ brief.
She said he did not provide all the transcripts of the many court dates, but just transcripts he felt were important. However, Ms. Fuller said in order for the court to make a decision on why the delays occurred and because of whom, she felt Charter 11b should not be ruled in favour of Mr. Cull and Mr. Burns without all transcripts.
Ms. Fuller noted the affidavits of Mr. Cull and Mr. Burns were almost identical, that they appeared to have been cut and pasted together. She also noted that some information in the affidavits did not coincide with some of the court transcripts.
“Affidavits cannot be used as evidence of transcripts,” she said. “They are not accurate summaries of what’s occurred.”
The court transcripts create a transparency of what has occurred in the past 30 months, she said. The transcripts allow the court to scrutinize and see if Charter 11b is applicable, she said. Without the transcripts, the Crown is not able to defend what is on record, she added.
Citing case law, Ms. Fuller said, “Common sense dictates that transcripts are necessary.”
She pointed out that the transcripts are available, but the defence was “selective, not objective,” in which transcripts he provided.
Mr. Bogaerts had opportunity to reply to Ms. Fuller’s comments. He noted that affidavits are indicative of what the person felt occurred.
He reiterated that this is not a criminal or provincial court case, but an infraction of a municipal bylaw. It’s a technicality of law and it has started to over-ride logic, he said.
Following an hour-long break, JP Mitchell returned to the bench and provided a brief answer as to why she ruled in favour of the Charter 11b application to stay the proceedings.
There has been an unreasonable delay of this trial, she said, but not just by one person.
Each of the defendants started without legal counsel, then decided to have their trials together and then hired counsel.
“Twelve months (after the charges were laid), they hired counsel,” JP Mitchell said.
As for the prosecution’s side, it did not provide disclosure in an appropriate time, she said.
“There were excessively long delays attributed to getting disclosure,” JP Mitchell said.
As for the judicial office, there should be more resources for the Justice of the Peace and closer court dates so there would not be lengthy delays, she said. The government has a constitutional obligation to commit resources to prevent unreasonable delays, she said.
“All three put Mr. Cull and Mr. Burns in a situation that is not fair,” JP Mitchell said. “And, because it’s unfair, it’s not necessary to lay blame.
“It was a combination of errors that brought this to a 30 month delay,” she stated.
