Lawyer wins his appeal for removing stumps

By Sue Yanagisawa
Local News - Friday, July 16, 2004 @ 07:00

Kingston lawyer John T. Zuber has won his appeal on a 2003 Fisheries Act conviction that left him facing $12,500 in fines and restoration costs to sink logs in Dog Lake in front of his undeveloped cottage property.

Zuber was charged in the fall of 2001 with altering or destroying fish habitat by removing six tree stumps from the lake at the edge of his lot in Maple Hill Estates.

Seven months later, at his trial in front of Mr. Justice Stephen Hunter of the Ontario Court of Justice, Zuber disputed that the stumps were underwater when he disposed of them. He told the court that they’d washed up on his shoreline.

However, he was convicted, fined $2,500, ordered to hire a consultant and replace the logs – work that he expected would cost about $10,000. He filed an immediate appeal and secured a stay that delayed the need for compliance until this September.

In the meantime, he argued his appeal in front of Mr. Justice Denis J. Power of the Ontario Superior Court and urged the judge to either overturn his conviction or reconsider his fine.

Last week, the judge overturnd his conviction. He has found that Zuber’s trial judge largely based his decision on the evidence of an expert witness, which was “to a large extent based on the fruits of an illegal search.”

Power concludes: “The Charter violations, in my opinion, were serious. They have resulted in [Zuber] not receiving a fair trial and bringing the administration of justice into disrepute.”

At his appeal hearing, Zuber argued on his own behalf that much of the evidence supporting the charge was gathered during illegal searches of his property, including a low fly-over by helicopter.

Mr. Justice Power agrees.

In order to contravene the section of Fisheries Act Zuber was charged under, he writes, “there must be evidence that the alteration or disruption of the fish habitat is somewhat permanent.”

At Zuber’s trial, the Crown relied on their expert witness, Mark Ferguson, to prove that point. A biologist with the Department of Fisheries and Oceans office in Prescott, Ferguson testified that the stumps play a key role in the spawning of fish such as northern pike and largemouth bass.

Hunter commented at Zuber’s first trial that “the removal of that type of structure from the aquatic ecosystem would be an alteration or destruction of that very fish habitat.”

Power found “this finding of fact by the [trial] judge was based, to a large extent, on the expert opinion of Mr. Ferguson.”

“There is, however, a serious problem with Mr. Ferguson’s evidence” in that the biologist’s opinions, being influenced by what he gleaned from illegal searches, didn’t provide the court with “sufficient admissible relevant evidence” to make that finding.

At Zuber’s trial, court was told that Simon Lunn of Parks Canada was alerted by a neighbour of Zuber’s on Sept. 6, 2001, that the lawyer was removing stumps from the front of his property.

Lunn inspected the shoreline two days later. He took pictures and issued a stop work order.

Fisheries inspector David O’Leary and Mark Ferguson first visited the property on Sept. 21. O’Leary took more photos and the two men returned on Oct. 26 to see how many stumps had been altered.

Three days later, O’Leary flew over the site in a coast guard helicopter, taking additional photographs, all of which were entered as evidence at Zuber’s trial.

O’Leary and Ferguson never secured a warrant for the searches, however, and Power writes that with respect to the section of the Act that Zuber was charged under, there is nothing in the Fisheries Act that permits representatives of the Minister or the government to conduct warrantless searches.