Executive Summary: Key Legal and Evidentiary Issues

• Alleged unlawful destruction of threatened species habitat during land development activities.

• Dispute over the Crown’s obligation to disclose records related to similar projects and whether such records were “obviously relevant.”

• Assessment of whether delays in disclosure and proceedings amounted to a violation of the appellants’ rights under s. 11(b) of the Charter.

• Consideration of whether the trial judge erred in attributing delay to the defence due to lack of diligence.

• Evaluation of the appropriateness of certiorari and s. 24(1) Charter relief as remedies for alleged procedural errors.

• Impact of new legislation (Species Conservation Act, 2025) on the ongoing prosecution under the repealed Endangered Species Act, 2007.

Facts of the case

The appellants, including 2555569 Ontario Inc., Clear Lake Estates Corp., individual directors, FRI Ecological Services Inc., and Rebecca Geauvreau, were charged in March 2019 with unlawfully damaging or destroying the habitat of the Massasauga rattlesnake, a threatened species, during the construction of an access road to new cottages. These charges were laid under s. 10(1)(a) of the Endangered Species Act, 2007. The case centered on whether the appellants’ land clearing activities had a detrimental impact on protected wildlife habitat.

The appellants sought extensive disclosure from the Crown, requesting information about other road and construction projects reviewed by the Ministry of Natural Resources and Forestry (MNRF) staff since the habitat protections came into force. The Crown refused, arguing the records were irrelevant and held by a third party. After nearly three years, the appellants narrowed their request and eventually received the documents following a third-party inquiry process.

Procedural history and Charter arguments

Upon arraignment in September 2023, the appellants applied for a stay of proceedings, alleging unreasonable delay under s. 11(b) of the Charter due to the protracted disclosure process. The trial judge dismissed this application, attributing some responsibility for the delay to the appellants’ lack of diligence in pursuing disclosure. The appellants then sought certiorari in the Superior Court, arguing that the trial judge had failed to properly exercise jurisdiction by not recognizing the “obvious relevance” of the requested disclosure and by not attributing the delay to the Crown. They also sought s. 24(1) Charter relief, claiming a miscarriage of justice.

The Superior Court dismissed both applications, finding no jurisdictional error by the trial judge and holding that the appropriate remedy for any alleged Charter breach would be through the normal appeal process, not by interlocutory relief.

Appeal to the Court of Appeal and policy considerations

On appeal, the appellants argued that both the trial and application judges failed to properly address the relevance of the disclosure and the Crown’s conduct, which they claimed should have resulted in attributing the delay to the prosecution. The Court of Appeal disagreed, affirming that while the Crown must disclose relevant material, the defence must also diligently pursue disclosure. The court found no error in the lower courts’ approach, emphasizing that interlocutory appeals are generally not permitted and that the case did not present exceptional circumstances warranting extraordinary relief.

The appellants also sought to introduce fresh evidence regarding new legislation, the Species Conservation Act, 2025, which repeals the Endangered Species Act, 2007 but had not yet come into force. They argued that this legislative change indicated their conduct should not be considered unlawful. The court rejected this argument, noting that prosecutions must proceed under the law in force at the time of the alleged offence and that expert opinion on the interpretation of domestic law is inadmissible.

Ruling and outcome

The Court of Appeal dismissed both the motion to admit fresh evidence and the appeal itself. The court found no denial of natural justice and held that any error in the s. 11(b) ruling could be addressed through the ordinary appeal process if necessary. The successful party in this proceeding was the respondent, His Majesty the King in Right of Ontario, and no monetary award or costs amount was specified in the decision.