Guilty Until Proven Innocent by Jeff Bogaerts

Jeff BogaertsOn Monday April 17, 2023, a trial was held in Provincial Offences Court.

The case involved seven charges laid under the Building Code Act.

The case is still before the court and no names and location will be discussed.

It is not necessary for this story to identify any participants.

What is a date on a calendar? Why do we note one date more importantly than another?

A date on a calendar can be just another day in your life or it can contain an event so significant an entire lifetime is lived in one day, June 6th 1944, September 11, 2001.

Without a calendar, how do we know when the anniversary of an event has arrived? If it is the birth of a child in the Spring, flocks of returning Canadian Geese can be the indicator of Spring, but not the actual day of the child’s birth.

When an event is significant, the date of the event must be recorded accurately for personal, family, societal or historical reasons.

Such a date of historical importance occurred on Monday April 17, 2023. A trial in Provincial Offences Court in Ontario under the Building Code Act.

There were seven charges in total. All charges occurred on a 100-acre parcel of land in the “back country”. No public land or public buildings were involved. All the land was privately owned as were the buildings. No one was hurt. No property damaged. This was a situation that had been ongoing for a few years, and it finally ended in court.

I will speak to two of the seven charges. Orders to Comply were posted on the building. One for a building permit and one for a septic permit. Once posted these orders must not be removed unless authorized by an inspector, officer, or registered code agency.

The property owner was charged under section 20 of the Building Code Act.

Obstruction or removal of order

20 No person shall obstruct the visibility of an order and no person shall remove a copy of an order posted under this Act unless authorized to do so by an inspector, officer or registered code agency.  1997, c. 24, s. 224 (14); 2002, c. 9, s. 36.

What does section 20 mean?

No person “shall”. The word shall in law means you can not do it, period. 

“Obstruct the visibility of an order”. Do not do anything that would interfere with and not allow a person to see the posted orders. 

“No person shall remove a copy of an order”. Once the order has been posted it is not to be removed. This is clear and unambiguous, do not touch.

To convict a person of an offence, there must be evidence to substantiate the elements of the offence.

There must be a witness(es), pictures, video, fingerprints, blood type, gunshot residue, DNA, documents, emails, phone calls. The list of evidence can be extensive.

So, what evidence did the building inspector give to the court under oath and examination, that convinced the Justice of the Peace to find the property owner guilty of charge 6 and 7, Posted Orders under Section 20 of the Building Code?

The following is a paraphrase of the cross examination of the inspector.

  1. Inspector, do you have any evidence, photos, video, witnesses, any evidence that can prove the accused removed the posted comply orders?
  2. No.

The following is a paraphrase of the examination-in-chief of a defence witness.

  1. Are you aware of any evidence that the accused removed the posted comply orders?
  2. No
  3. Are you aware of anyone who did?
  4. No. 

The building inspector presented no evidence that the accused removed the posted orders.

The defence witness testified to having no knowledge that the accused or anyone else removed the posted orders.

Why did the inspector file a charge under section 20 if there was no evidence?

Why did the Justice of the Peace make a finding of guilt if there was no evidence?

At the end of the day the property owner was found guilty on all seven charges.

The Prosecutor stated that the maximum fine per charge was $50,000.00 under the Building Code. The prosecutor asked the court to authorize a fine of $15,000.00 for each of the 7 charges.

The fines total $105,000 plus the 25% victim surcharge of $26,250 for a total of $131,250.00.

The defence will make their sentencing submissions in August.

The phrase, “Innocent until proven Guilty”, did not apply to the charges under section 20.

Why not? As a Canadian Citizen, what is your opinion? Do you believe in Innocent until Proven Guilty? Is this not the basis of the Justice system in Canada?

Has the Justice system lowered the standards for a conviction to a level where no evidence is required and that on a “balance of probabilities” it was the property owner that removed the posted comply orders.

Section 20 of the Building Code is quite clear as to the elements of the charge. If there are no witnesses or other evidence to prove the accused removed the posted orders, then how can the accused be convicted?

Innocent until Proven Guilty. No evidence, no conviction.

If we allow this transgression to stand, what else are we willing to be silent on?

Sir William Blackstone (1723 – 1780) of England wrote the “Commentaries on the Laws of England published in four volumes from 1765 to 1769, offering a comprehensive examination of English law, from constitutionalism to common law.

One of the concepts penned by Sir William Blackstone was the following: 

“It is better that ten guilty persons escape than that one innocent suffers”. 

The argument that ten guilty persons should be in prison and if one innocent person gets caught up in the net of justice, that this incidental catch is an acceptable price to pay for our justice system.

This argument is acceptable to those who agree with it, provided none of the agreeable people would be the innocent person in prison.

If you have worked in a prison or have been an inmate in a prison, your attitude to allowing an innocent person to be locked up for years will change overnight.

This case is still before the courts. The court location and the case name will not be released until after sentencing.

The OLA will follow this case and report the results. Please forward this letter on to others.

Jeff Bogaerts
Ontario Landowners Association
May 09, 2023.