Cutting Trees Without Permit: a Failure to Comply With Municipal Bylaw Mandates

Question: How can I defend against tree cutting charges in Ontario?

Answer: Navigating tree cutting charges can be challenging, especially in municipalities with strict bylaws.  Denali Paralegal Services offers valuable guidance to individuals facing these charges by helping them understand the specific regulations that apply to their situation.  By engaging with our team, you can ensure that you take proactive steps toward compliance and potentially strengthen your due diligence defence.

Strategies for Defending Against Tree Cutting Charges

Removing or damaging trees without appropriate municipal approval may lead to charges under a local bylaw.  While some municipalities are without a tree cutting regulatory framework, others enforce tree protection bylaws rigorously.  In jurisdictions where a tree-cutting bylaw exists, failure to comply with permit, notice, or forestry standards, may result in significant fines and other penalties.  Understanding the nature of these offences and the available legal defences is crucial for an accused person.

Tree-Cutting Bylaws Vary by Municipality

Municipalities in Ontario are authorized to enact bylaws to regulate the destruction or injury of trees, typically to preserve environmental quality, biodiversity, and woodland sustainability.  Bylaw provisions may require that:

• A person harvest trees only in accordance with good forestry practices;
• A person cut only those trees that meet minimum size or circumference requirements;
• A person file mandatory applications or notices before tree cutting begins;
• A person properly post notice signage at the property where removal occurs.

The specific procedural and substantive obligations vary across municipalities.  Due to this variability, it is important to consult the applicable municipal bylaw before proceeding with any tree-related activity.

Example

The case of County of Elgin v. Nirta, 2012 ONCJ 629, provides an instructive example of how courts handle charges under a tree protection bylaw.  In that case, multiple individuals were charged with multiple offences after cutting 124 trees in a right-of-way without proper authorization.  The charges included:

• The cutting of trees without compliance with good forestry practices;
• The cutting of trees below the minimum size threshold;
• The failure to submit a required tree cutting application;
• The failure to post signage and give notice to the Tree Commissioner;
• The causing of excessive damage and destroying trees intended to remain standing;

The trial and appellate courts emphasized that tree protection bylaws serve environmental goals and also aim to preserve public confidence in regulatory processes.  The court stated that failure of compliance with these processes undermines environmental governance and merits deterrent penalties.

Involves Strict Liability

The charges in Nirta were classified as strict liability offences.  A strict liability offence requires only that the prosecutor to prove that the unlawful conduct occurred without proving an intent to act unlawfully (mens rea); and accordingly, instead, once the prohibited act is established, the onus shifts to the defendant to prove that reasonable precautions were taken to avoid committing the violation.

In a strict liability context, the only available defence is due diligence.  This requires demonstrating, on a balance of probabilities, that the accused took all reasonable steps to avoid committing the offence.  Ignorance of the bylaw is invalid as an excuse as is a mistaken belief in the legality of the conduct sufficient if that belief is based on insufficient efforts to investigate the law.

Diligence Defence Strategy Requisites

In Nirta, the accused persons failed to establish a due diligence defence.  The court found that:

• The accused persons failed to make inquiries about tree-cutting regulations despite having prior experience with municipal enforcement;
• The accused persons failed to consult the Tree Commissioner or legal counsel before proceeding with tree-cutting operations;
• The accused persons accelerated the tree cutting after a dispute with the landowner thereby showing willful disregard for regulatory processes;

The court rejected the defence of passive ignorance and emphasized that due diligence requires proactive efforts to determine legal obligations.  The standard is less tha perfection but includes reasonableness; such as consulting municipal authorities, reviewing bylaws, or obtaining advice from professionals, may all support a due diligence defence if done in good faith.

Potential Penalties

Including Sentencing Considerations

While the penalties in Nirta involved fines ranging from $1,000 to $7,500 per count, the bylaw for the County of Elgin bylaw permitted fines of up to $10,000 or $1,000 per tree, whichever is greater.  When setting the fines, the court stated that fines must be high enough:

• To deter both the individual and the broader public from failing to comply;
• To prevent the perception that a fine is merely a cost of land development; and
• To protect the integrity of environmental regulation and public trust.

It is notable that sentencing under regulatory offences is unintended as punishment but is intended to advance environmental protection and respect for the law.

Conclusion

Charges for cutting or damaging trees without municipal approval can carry serious consequences under local bylaws.  As demonstrated in County of Elgin v. Nirta, courts will enforce these bylaws even in cases where economic gain was uninvolved, and the only available defence, due diligence, requires clear evidence of proactive efforts to comply with legal obligations.  Individuals considering tree removal should review the applicable municipal bylaw, seek professional guidance, and document every step taken to comply with the permit process.  Taking such precautions can reduce exposure to liability and demonstrate a sincere commitment to regulatory compliance and environmental stewardship.