[1] Chief Justice Brian W. Lennox of the Ontario Court of Justice in his speech at the Opening of the Courts, on 10 January 2007, noted that in 2006 there were 600,000 criminal charges brought in the Ontario Court of Justice, of which 87% were dealt with by guilty plea or withdrawal. The trial rate was 5-8%.
[2] R.. v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641, 238 O.A.C. 242, [2008] O.J. No. 2468 at para. 16 (QL) [R.R.].
[3] Provincial Offences Act, R.S.O. 1990, c.P.33 [Provincial Offences Act].
[4] Opening of the Courts, 10 January 2007, note 1.There were over 1,700,000 charges under the Provincial Offence Act bought before the court in 2006, plus 11,000 appeals, according to Chief Justice Lennox. That is, there were almost three times as many provincial offences or regulatory offences, than criminal offences, before the courts. The latest statistics which are available indicate that for 2009, there were 2,159, 186 charges received by the Ontario Court of Justice for charges under the Provincial Offences Act. Of these the trial rate was 2.5%.
[5] Provincial Offences Act, note 3, s.1(1) definition of “offence”. The terms “provincial offences”, “regulatory offences” and “public welfare offences” are used inter-changeably throughout this research paper.
[6] Contraventions Act, S.C. 1992, c.47, s.2 definition of “contravention”. [Contraventions Act]
[7] T.L. Archibald, K.E. Jull, and K.W. Roach, Regulatory and Corporate Liability: From Due Diligence to Risk Management (Aurora: Canada Law Book Inc., 2005) at 12-9-12-10.
[8] Ontario Law Commission, The Modernization of the Provincial Offences Act. (Consultation Paper, November 2009) (Toronto: Law Commission of Ontario, 2009) at 17-18.
[9] Criminal Code, R.S.C. 1985, c.C-46 [Criminal Code].
[10] Criminal Code, note 9, s.718.
[11] R. v. Wholesale Travel Group Inc.,[1991] 3 S.C.R. 154, [1991] S.C.J. No. 79 (QL) [Wholesale Travel Group Inc.].
[12] Wholesale Travel Group Inc., note 11 at [QL] paras. 136-137.
[13] F.B. Sayre, “Public Welfare Offences” (1933), 33 Colum. L. Rev. 55 at 73.
[14] Liora Salter, Methods of Regulation (Vancouver: Simon Fraser University Department of Communication, 1986).
[15] Ian Ayres and John Braithwaite, Responsive Regulation. Transcending the Deregulation Debate (New York: Oxford University Press, 1992) at 35. In Canada “a great deal of the power” of regulatory agencies is dependent upon persuasion: Liora Salter and Debra Slaco, Public Inquiries in Canada (Ottawa: Government of Canada, 1981) at 210.
[16] Ayres, note 15 at 40, describes this strategy as “regulation by raised eyebrows” or “regulation by vice-regal suasion”, noting in their study of approximately 100 Australian regulatory agencies that while enormous powers were given to these regulators, it was hardly necessary to use them in order to secure compliance.
[17] Wholesale Travel Group Inc., note 11 at [QL] para. 219.
[18] R. v. Hydro-Quebec, [1997] 3 S.C.R. 213, [1997] S.C.J. No. 76 at para. 46 (QL) [Hydro-Quebec].
[19] Jeremy Rowan-Robinson, Paul Q. Watchman, and C.R. Barker, “Crime and Regulation”, [1988] Crim. L.R. 211.
[20] Rowan-Robinson, note 19. See further Keith Hawkins, “Bargain and Bluff. Compliance Strategy and Deterrence in the Enforcement of Regulation” (1983), 5 Law & Policy Quarterly 35 at 48.
[21] Archibald, note 7 at 12-1.
[22] Archibald, note 7 at 1-16.3.
[23] Archibald, note 7 at 1-16.3. See further Salter, note 14 at 151 where risk assessment is described as a “problem-oriented concept” whose use is said to imply that “developments should be allowed to proceed, and products used, unless serious problems have been identified.”
[24] Archibald, note 7 at 12-1.
[25] R. v. Cotton Felts Ltd. (1982), 2 C.C.C. (3d) 287, [1982] O.J. No. 178 at para. 19 (QL) (C.A.) [Cotton Felts Ltd.].
[26] Archibald, note 7 at 12-1.
[27] L.H..Leigh, “The Criminal Liability of Corporations and Other Groups” (1977), 9 Ottawa L. Rev. 247.
[28] Law Reform Commission of Canada, Studies in Strict Liability (Ottawa: Government of Canada, 1974) at 2.
[29] The first Criminal Code of Canada, which was enacted in 1892, contained 983 sections: see D.H. Brown, The Genesis of the Canadian Criminal Code of 1892 (Toronto: Osgoode Society, 1989) at 126. The current Criminal Code contains fewer section numbers due to the numbering method which is employed,, but there are considerably more provisions in total; it is approximately 1600 pages in length.
[30] Law Reform Commission of Canada, Policy Implementation, Compliance and Administrative Law (Working Paper 51) (Ottawa: Government of Canada, 1986) at 38.
[31] Wholesale Travel Group Inc., note 11 at [QL] para. 134.
[32] Law Reform Commission of Canada, Our Criminal Law (Ottawa: Government of Canada, 1976) at 11.
[33] R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299, [1978] S.C.J. No. 59 (QL), 40 C.C.C. (2d) 353 at 364 [Sault Ste. Marie].
[34] Sault Ste. Marie, note 33 at [C.C.C.] 362-363.
[35] Sault Ste. Marie, note 33 at [C.C.C.] 373-374.
[36] Sault Ste. Marie, note 33 at [C.C.C.] 374.
[37] J. Swaigen, Regulatory Offences in Canada. Liability & Defences (Toronto: Carswell Thompson Professional Publishing, 1992) at 219.
[38] Glanville Williams, Criminal Law. The General Part (2nd ed.) (London: Stevens & Sons Limited, 1961) at 235.
[39] R. Libman, Libman on Regulatory Offences in Canada (Salt Spring Island: Earlscourt Legal Press Inc., 2002) at 1-3.
[40] Sault Ste. Marie, note 33 at [C.C.C.] 357.
[41] Sault Ste. Marie, note 33. See further Colin Howard, Strict Responsibility (London: Sweet & Maxwell, 1963) at 1, stating that regulatory offences are often part of a legislative scheme “for the administrative regulation of society.”
[42] John C. Coffee Jr., “Does ‘Unlawful’ Mean ‘Criminal’?: Reflections on the Disappearing Tort/Crime Distinction in American Law” (1991), 71 Bost. U.L.R. 194.
[43] Coffee, note 42. Although it might be said that since penalties create financial incentives to dissuade a person or corporation from engaging in conduct which is unlawful, a penalty is the “price” of violating the law: see Karen Yeung, “Quantifying Regulatory Penalties: Australian Competition Law Penalties in Perspective” (1999), 23 Melb. U. L. Rev. 440 at 446.
[44] Sault Ste. Marie, note 33 [C.C.C.] at 357.
[45] Clayton C. Ruby and K.E. Jull, “The Charter and Regulatory Offences: A Wholesale Revision” (1992), 14 C.R. (4th) 226 at 228.
[46] Swaigen, note 37 at 4.
[47] Sayre, note 13 at 56.
[48] Law Reform Commission of Canada, Sentencing in environmental cases (Ottawa: Law Reform Commission of Canada, 1985) at 4. The authors of this Study Paper are John Swaigen and Gail Bunt.
[49] S.P.Green. “Why It’s a Crime to Tear the Tag Off a Mattress: Overcriminalization and the Moral Context of Regulatory Offences” (1997), 46 Emory L.J. 1533 at 1544.
[50] Competition Act, R.S.C. 1985, c.C-34 [Competition Act].
[51] Combines Investigation Act, R.S.C. 1985, c.C-23 [Combines Investigation Act].
[52] See Competition Bureau, Information Bureau, 22 September 1999, “Misleading Representations and Deceptive Marketing Practices: Choice of Criminal or Civil Track under the Competition Act.”
[53] Competition Bureau, “Conformity Continuum Information Bulletin” (23 December 2003).
[54] Bill C-45, An Act to Amend the Criminal Code (Criminal Liability of Organizations), S.C. 2003, c.21 [Bill C-45]. The legislation came into force on 31 March 2004.
[55] In the first prosecution under these new Criminal Code amendments, a contractor was directing construction work outside a house, but then left the scene to get materials for the job, when the trench collapsed killing a worker. The Criminal Code charges were subsequently withdrawn, and the defendant was permitted to plead guilty for a $50,000 fine under the Ontario Occupational Health and Safety Act, R.S.O. 1990, c.O.1 [Occupational Health and Safety Act (Ont.)]: see R. v. Fantini, [2005] O.J. No. 2361 (QL) (C.J.) [Fantini]. To date there has been one further prosecution under the legislation, a case where an employee was crushed to death by a concrete press: R. v. Transpavé Inc., 2008 QCCQ 1598, [2008] Q.J. No. 1857 (QL) [Transpavé Inc.]. The company pleaded guilty to a count of criminal negligence causing death, arising from this workplace accident, and was fined $100,000.
[56] Securities Act, R.S.O. 1990, c.S.5 [Securities Act (Ont.)].
[57] Wilder v. Ontario Securities Commission (2001), 53 O.R. (3d) 519, 142 O.A.C. 300, [2001] O.J. No. 1017 at para. 23 (QL) [Wilder]. In this case the Court rejected a challenge to the Security Commission’s jurisdiction to reprimand a lawyer.
[58] Environmental Enforcement Statute Law Amendment Act, 2005, S.O. 2005, c.12.[Environmental Enforcement Act (Ont.)]
[59] J. Gobert, “Corporate Criminality: New Crimes for the Times”, [1994] Crim. L.R. 722.
[60] Gobert, note 59 at 725. See also Law Reform Commission of Canada, Sentencing in environmental cases, note 47 at 15 where it is noted that some regulators may even feel that where abatement has been achieved due to a prosecution, a fine may be “irrelevant” and “counter-productive” due to straining relations between enforcement officials, or reducing resources available to the offender for improvement of the environment.
[61] H.J. Glasbeek, “Commercial Morality Through Capitalist Law: Limited Possibilities” (1993), 27 R.J.T. 263 at 301.
[62] S.G. Breyer, Breaking the Vicious Circle: Toward Effective Risk Regulation (Cambridge: Harvard University Press, 1993) at 57-58.
[63] Lévis (City) v. Tétreault, 2006 SCC 12, [2006] 1 S.C.R. 420, [2006] S.C.J. No. 12 (QL) [Lévis].
[64] R. v. Kanda, 2008 ONCA 22, 88 O.R. (3d) 732, 233 O.A.C. 118, [2008] O.J. No. 80 at para. 43 (QL) [Kanda]; R. v. Raham, 2010 ONCA 206, [2010] O.J. No. 1091 at para 37 (QL) [Raham].
[65] Highway Traffic Act, R.S.O. 1990, c.H.8 [Highway Traffic Act (Ont.)].
[66] Kanda, note 64 at [QL] para. 43.
[67] Kanda, note 64 at [QL] para. 21.
[68] Highway Traffic Act (Ont.), note 65, s.104(2.2).
[69] Highway Traffic Act (Ont.), note 65, s.75(4).
[70] Highway Traffic Act (Ont.), note 65, s.84.1.
[71] Kanda, note 64 at [QL] para. 44.
[72] Swaigen, note 37 at 52.
[73] Raham, note 64.
[74] R. v. Hickey (1976), 13 O.R. (2d) 228 (C.A.) [Hickey]; R. v. Polewsky (2005), 202 C.C.C. (3d) 257, [2005] O.J. No. 4500 (QL) (C.A.), leave to appeal to S.C.C. refused, [2006] 1 S.C.R. xiii. [Polewsky]
[75] R. v. Harper (1986), 53 C.R. (3d) 185, [1986] B.C.J. No. 706 (QL) (C.A.) [Harper]; R. v. Lemieux (1978), 41 C.C.C. (2d) 33, [1978] Q.J. No. 184 (QL) (C.A.) [Lemieux]; R. v. Naugler (1981), 49 N.S.R. (2d) 677, [1981] N.S.J. No. 547 (QL) (C.A.) [Naugler].
[76] Raham, note 64 at [QL] para. 51.
[77] Provincial Offences Act, note 3, s.61.
[78] Criminal Code, note 9, s..787(1).
[79] Christopher Sherrin, Charter Rights in Regulatory vs. Criminal Proceedings: A Distinction in Need of a Difference? (Osgoode Hall Law School, York University: Ph.D. dissertation, 2008) at 217.
[80] J. Swaigen, “Negligence, Reverse Onuses and Environmental Offences: Some Practical Considerations” (1992), 2 J. Envtl. L. & Prac. 149 at 153.
[81] Swaigen, note 80. See also K.R. Webb, “Regulatory Offences. The Mental Element and the Charter: Rough Road Ahead” (1989), 21 Ottawa L.R. 419 at 421.
[82] Don Stuart, Canadian Criminal Law, 5th ed. (Toronto: Thomson Canada Limited, 2007) at 195.
[83] Wholesale Travel Group Inc., note 11 at [QL] para. 42. For a more recent comment to the same effect, see R. v. Dial Drug Stores Ltd. (2001), 52 O.R. (3d) 367, [2001] O.J. No. 159 at para. 103 (QL) (C.J.); rev’d (2003). 63 O.R. (3d) 529, [2003] O.J. No. 754 (QL) (S.C.J.) [Dial Drugs Stores Ltd.]: “It would be cold comfort to those whose rights were infringed on the way to a conviction that the time they spent in a penitentiary was only a ‘mode of enforcement’ of a regulatory statute. It looks like jail and punishment to me and I am sure to anyone involved.”
[84] See, for example, Law Reform Commission of Ontario, Report on the Basis of Liability for Provincial Offences (Toronto: Government of Ontario, 1990). In a recent decision considering the Competition Act, note 50, offence of making false or misleading representations to the public, the Ontario Court of Appeal observed in R. v. Stucky, 2009 ONCA 151, [2009] O.J. No. 600 at para. 20 (QL) [Stucky]: “Since the decision in Sault Ste. Marie, the distinction between criminal and regulatory offences has blurred. The label attached to the offence is no longer determinative. Rather, the penalties attached to the conduct, the values underlying the offence, and whether the offence is one for which mens rea is required must be considered.”
[85] Canadian Charter of Rights and Freedoms, Schedule B, The Constitution Act, 1982 [Charter of Rights]
[86] R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, [2001] S.C.J. No. 79 at para. 84 (QL) [974649 Ontario Inc.].
[87] Occupational Health and Safety Act (Ont.), note 55.
[88] The Criminal Code provides that a person who is sentenced to imprisonment for a criminal offence for a term of at least two years is to serve it in a penitentiary: s.743.1(1).
[89] P. Hogg, Constitutional Law of Canada, (Toronto: Carswell Professional Publishing, looseleaf) at 591.
[90] Criminal Code, note 9, s.742.1.
[91] Archibald, note 7 at 9-2. Conditional sentences are “creatures of statute”. While conditional sentences are available under the provisions of the Criminal Code, there is no jurisdiction to impose them under provincial legislation: see the cases to this effect summarized in Libman, note 38 at 11.2(t).
[92] Compulsory Automobile Insurance Act, R.S.O. 1990, c.C.25 [Compulsory Automobile Insurance Act (Ont.)].
[93] R. v. Jenkins, 2010 ONCA 278, [2010] O.J. No. 1517 (QL) [Jenkins]. Trials held in the absence of the defendant, or ex parte proceedings, are permitted under s.54 of the Provincial Offences Act, note 3. The Court of Appeal in Jenkins rejected a constitutional challenge to the validity of such proceedings.
[94] R. v. Hughes, 2004 ABQB 521, [2004] A.J. No. 895 at para. 19 (QL) [Hughes].
[95] Hughes, note 94 at [QL] para. 21
[96] R. v. Welcher, 2007 NLTD 87, 267 Nfld. & P.E.I.R. 211, [2007] N.J. 153 at para. 34 (QL) [Welcher].
[97] Wildlife Act, R.S.A. 2000, c.W-10 [Wildlife Act (Alta.)].
[98]R. v. Mistol, 2002 ABPC 123, 321 A.R. 220, [2002] A.J. No. 922 (QL) [Mistol].
[99] Mistol, note 98 at [QL] para. 22.
[100] R. v. Virk, [2002] O.J. No. 4102 (QL) (C.J.) [Virk].
[101] Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16 [Workplace Safety and Insurance Act (Ont.)].
[102] Virk, note 100 at para. 54.
[103] Virk, note 100 at para. 56.
[104] Virk, note 100 at para. 57. The defendant was subsequently sentenced to 5 months’ imprisonment, ordered to pay restitution of $33,596 to the Workplace Safety Insurance Board, and placed on probation for two years.
[105] Retail Sales Tax Act, R.S.O. 1990, c.R.31 [Retail Sales Tax Act (Ont.)].
[106] Employment Insurance Act, S.C. 1996, c.18 [Employment Insurance Act].
[107] R. v. Cox, 2003 ABPC 9, [2003] A.J. No. 152 (QL) [Cox]
[108] Occupational Health and Safety Act, 1993, S.S. 1993, c.O-1.1 [Occupational Health and Safety Act (Sask.)].
[109] R. v. Westfair Foods Ltd., 2005 SKPC 26, 263 Sask. R. 162, [2005] S.J. No. 279 (QL) [Westfair Foods Ltd.].
[110] Business Practices Act, R.S.O. 1990, c.B.18 [Business Practices Act (Ont.)].
[111] R. v. Pellegrini, 2006 ONCJ 297, [2006] O.J. No. 3369 (QL) (C.J.) [Pellegrini].
[112] Fair Trading Act, R.S.A. 2000, c.F-2 [Fair Trading Act (Alta.)].
[113] R. v. Kreft, 2006 ABPC 258, 407 A.R. 376, 66 Alta. L.R. (4th) 341, [2006] A.J. No. 1249 (QL) [Kreft].
[114] Local Authorities Election Act, R.S.A. 2000, c.L-21 [Local Authorities Elections Act (Alta.)].
[115] R. v. Aftergood, 2007 ABPC 122, 419 A.R. 82, 74 Alta. L.R. (4th) 368, [2007] A.J. No. 820 (QL). [Aftergood]
[116] Caitilin R. Rabbitt, Social Regulation and Criminal Sanctions: Social Control for a Democratic Society (New York University: Ph.D dissertation, 2005).
[117] R. v. Adomako, [2002] O.J. No. 3050 (QL) (C.J.) [Adomako]. The offence is under the Occupational Health and Safety Act (Ont.), note 55.
[118] Adomako, note 117.
[119] R. v. Kirk, 2005 ONCJ 352, [2005] O.J. No. 3316 (QL) [Kirk].
[120] R. v. Dawson (City), 2003 YKTC 16, [2003] Y.J. No. 22 (QL) [Dawson]. The time-line for construction of the facility was subsequently extended, given the City’s financial situation which necessitated that it was under the management of a trustee: see R. v. Dawson (City), 2004 YKTC 69, [2004] Y.J. No. 94 (QL) [Dawson No. 2].
[121] Fisheries Act, R.S.C. 1985, c.F-14, s.36(3) [Fisheries Act].
[122] For a discussion on the use of “creative sentences” see Gordon S. Campbell, “Fostering a Compliance Culture Through Creative Sentencing for Environmental Offences” (2004), 9 Can. Crim. L. Rev. 1; Elaine L. Hughes and Larry A. Reynolds, “Creative Sentencing and Environmental Protection” (2009), 19 J.E.L.P 105; Cecily Y. Strickland and Scott R. Miller, “Creative Sentencing, Restorative Justice and Environmental Law: Responding to the Terra Nova FPSO Oil Spill” (2007), 30 Dalhousie L.J. 547; Libman, note 39, at 11.2(x).
[123] Wholesale Travel Group Inc., note 11 at [QL] para. 131.
[124] See, for example, Charles J. Babbitt, Dennis C. Cory and Beth L. Kruchek, “Discretion and the Criminalization of Environmental Law” (2004), 15 Duke Envtl. L. & Pol’y F. 1; Duncan Chappell, From Sawdust to Toxic Blobs: A Consideration of Sanctioning Strategies to Combat Pollution in Canada (Ottawa: Government of Canada, 1989): Chapter 6. A Matter of Enforcement: Or No More Mr. Nice Guy? In David C. Fortney, “Thinking Outside the ‘Black Box’: Tailored Enforcement in Environmental Criminal Law”, (2003), 81 Tex. L. Rev. 1609 at 1610, reference is made to a survey of public perception of the severity of various crimes, the result of which was that environmental crime was ranked seventh, ahead of armed robbery and other serious crimes.
[125] Law Reform Commission of Canada, What is a Crime? Challenges and Alternatives. (Discussion Paper) (Ottawa: Government of Canada, 2003) at 3.
[126] Bruce Pardy, Environmental Law: A Guide to Concepts (Markham: Butterworths Canada Ltd., 1996) 187 defines the polluter pays principle as a principle of liability that, “whenever possible, the actor that causes pollution damage should pay for restoration, compensation and future prevention.”
[127] Environmental Quality Act R.S.Q., c.Q-2, s.31.43 [Environmental Quality Act (Que.)]
[128] Imperial Oil Canada v. Quebec (Minister of the Environment), 2003 SCC 58, [2003] 2 S.C.R. 624, [2003] S.C.J. No. 59 (QL) [Imperial Oil Canada].
[129] Imperial Oil Canada, note 128 at [QL] para. 23. The recently enacted Ontario Environmental Enforcement Act, note 58, was introduced as the “’You Spill You Pay’ Bill”.
[130] Rio Declaration on Environment and Development UN Doc. A/Conf. 151/5/Rev. 1 (1992) [Rio Declaration].
[131] Canadian Environmental Protection Act, 1999, S.C. 1999, c.33, s.287 [Canadian Environmental Protection Act].
[132] Canada Shipping Act, 2001, S.C. 2001, c.16., s.191(4) [Canada Shipping Act].
[133] Public Health Act, S.B.C. 2008, c.28 [Public Health Act (B.C.)]
[134] Public Health Act (B.C.), note 133, s.105(3).
[135] Public Health Act (B.C.), note 133, s.106(1).
[136] Sherie Verhulst, “Legislating a Principled Approach to Sentencing in Relation to Regulatory Offences” (2008), 12 Can. Crim. L. Rev. 281.
[137] Law Reform Commission of Canada, note 48 at 16.
[138] R. v. Fraser Inc (1993), 139 N.B.R. (2d) 125, [1993] N.B.J. No. 641 (QL) (Prov.Ct.) [Fraser Inc.].
[139] Clean Environment Act R.S.N.B. 1993, c.C-6. [Clean Environment Act (N.B.)]
[140] S. D. Berger, The Prosecution and Defence of Environmental Offences (Aurora: Canada Law Book Inc., looseleaf) at 7-3; Libman, note 39 at 11.2(c).
[141] Environmental Protection and Enhancement Act ,R.S.A. 1980, c.E-13.3 [Environmental Protection and Enhancement Act (Alta.)]
[142] R. v. Cool Spring Dairy Farms Ltd., 1999 ABQB 247, 242 A.R. 143, [1999] A.J. No. 366 (QL) [Cool Spring Dairy Farms Ltd.].
[143] R. v. Van Waters & Rogers Ltd., 1998 ABPC 55, 220 A.R. 315, [1998] A.J. No. 642 (QL) [Van Waters & Rogers Ltd.].
[144] R. v. Goodman, 2005 BCPC 482, [2005] B.C.J. No. 2322 (QL) [Goodman].
[145] R. v. 100 Mile House (Village), [1993] B.C.J. No. 2848 (QL) (Prov.Ct.). [100 Mile House]
[146] R. v. Snap-On Tools Canada Ltd., [2002] O.J. No. 5520 (QL) (C.J.) [Snap-On Tools Canada Ltd.]
[147] Occupational Health and Safety Act (Sask.), note 108.
[148] R. v. Rosin, 2005 SKPC 69, 267 Sask. R. 154, [2005] S.J. No. 471 (QL), var’d 2005 SKQB 537, 273 Sask. R. 114, [2005] S.J. No. 757 (QL) [Rosin].
[149] R. v. Westfair Foods Ltd., 2005 SKPC 26, 263 Sask. R.162, [2005] S.J. No. 279 (QL) [Westfair Foods Ltd.]
[150] Archibald, note 7 at 12-9.
[151] Archibald, note 7 at 12-9.
[152] Verhulst, note 136 at 282.
[153] Verhulst, note 136 at 282.
[154] Archibald, note 7 at 12-9-12-10.
[155] W.S. Gilbert and A. Sullivan, The Mikado, Act II, No. 17 “A more humane Mikado”.
[156] Canadian Association of Provincial Court Judges, Canadian Sentencing Handbook (Ottawa: Canadian Association of Provincial Court Judges, 1982).
[157] Canadian Association of Provincial Court Judges, note 156 at 23.
[158] John Hogarth, Sentencing as a Human Process (Toronto: University of Toronto Press, 1971) at 3.
[159] Canadian Committee on Corrections, Towards Unity: Criminal Justice and Corrections (Ottawa: Government of Canada, 1969) at 185.
[160] Canadian Committee on Corrections, note 159 at 16.
[161] Canadian Committee on Corrections, note 159 at 185.
[162] Canadian Committee on Corrections, note 159 at 185.
[163] See Allan Manson, “The Reform of Sentencing in Canada” in Don Stuart, R.J. Delisle and Allan Manson, eds., Towards a Clear and Just Criminal Law (Toronto: Thomson Canada Ltd., 1999) 457 at 461.
[164] Canadian Committee on Corrections, note 159 at 185.
[165] Law Reform Commission of Canada, Dispositions and Sentences in the Criminal Process (Ottawa: Government of Canada, 1976) at 8-9. Interestingly, this was the Commission’s first report in the area of criminal law, the significance of which was noted in the preface, at 1, as signifying the importance of the “operation of the law and its consequences in practice” as opposed to the “written law”.
[166] Law Reform Commission of Canada, note 165 at 26 [Recommendation 14.1].
[167] Law Reform Commission of Canada, note 165 at 26 [Recommendation 14.3].
[168] Law Reform Commission of Canada, The Principles of Sentencing and Dispositions (Ottawa: Government of Canada, 1974).
[169] Law Reform Commission of Canada, Imprisonment and Release (Ottawa: Government of Canada, 1975).
[170] Law Reform Commission of Canada, note 168 at ix.
[171] Law Reform Commission of Canada, note 168 at 1.
[172] Law Reform Commission of Canada, note 168 at 25.
[173] Law Reform Commission of Canada, note 168 at 35.
[174] Law Reform Commission of Canada, note 168 at 13.
[175] Law Reform Commission of Canada, note 168.
[176] Law Reform Commission of Canada, note 169 at 17.
[177] Law Reform Commission of Canada, note 169 at, 13.
[178] Government of Canada, The Criminal Law in Canadian Society (Ottawa: Government of Canada, 1982).
[179] Government of Canada, note 178 at 33.
[180] Government of Canada, Sentencing (Ottawa: Government of Canada, 1984).
[181] Government of Canada, note 180 at 33.
[182] Government of Canada, note 180 at 33.
[183] Government of Canada, note 178.
[184] Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (Ottawa: Canadian Government Publishing Centre, 1986).
[185] Aidan Vining, Issues Relating to Sentencing Guidelines: An Evaluation of U.S. Experiences and Their Relevance for Canada (Ottawa: Government of Canada, 1988) at 50.
[186] Canadian Sentencing Commission, note 184 at 77.
[187] Canadian Sentencing Commission, note 184 at xxii. These views were shared by the Government of Canada: see the comments of the Minister of Justice and Attorney General of Canada, A. Kim Campbell, “Sentencing reform in Canada” (1990), 32 Canadian Journal of Criminology 387.
[188] Canadian Sentencing Commission, note 184 at 146.
[189] Canadian Sentencing Commission, note 184 at 151 [Recommendation 6.1].
[190] Canadian Sentencing Commission, note 184 at 154 [Recommendation 6.2(4)(a)].
[191] Standing Committee on Justice and Solicitor General, Taking Responsibility. Report of the Standing Committee on Justice and Solicitor General on its Review of Sentencing, Conditional Release and Related Aspects of Corrections (Ottawa: Government of Canada, 1988) at 44-46.
[192] Standing Committee on Justice and Solicitor General, note 190 at 43. In its examination of the history of sentencing reform in Canada, the Report made reference to an earlier Standing Committee Report which identified the problem of “broad discretion of the courts” as leading to “not only to great sentence disparities but also has left judges without assistance to make their difficult decisions.” See Standing Senate Committee on Legal and Constitutional Affairs, Parole in Canada (Report) (Ottawa: Information Canada, 1974) at 51.
[193]Government of Canada, Sentencing: Directions for Reform (Ottawa: Government of Canada, 1990).
[194] Government of Canada, note 193 at 4.
[195] Government of Canada, note 193 at 5.
[196] Campbell, note 187 at 390.
[197] Manson, note 163 at 459.
[198] Julian V. Roberts and Andrew von Hirsch, “Statutory Sentencing Reform: The Purpose and Principles of Sentencing” (1995), 37 Crim. L.Q. 220 at 222. See also Anthony N. Doob, “The New Role of Parliament in Canadian Sentencing” (1997), 9 Fed. Sent. R. 239.
[199] Manson, note 163 at 459.
[200] Manson, note 163 at 460.
[201] Bill C-41, An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c.22 [Bill C-41].
[202] Alan Young, The Role of an Appellate Court in Developing Sentencing Guidelines (Ottawa: Government of Canada, 1988) at 99.
[203] Julian V. Roberts, “Sentencing Reform: The Canadian Approach” (1997), 9 Fed. Sent. R. 245 at 248.
[204] Bill C-9, An Act to amend the Criminal Code (Conditional Sentence of Imprisonment), S.C. 2007, c.12 [Bill C-9]. The current provision is found in s.742.1 of the Criminal Code. An even more restrictive amendment to s.742.1, which would have precluded conditional sentences for all indictable offences punishable by 10 years’ imprisonment or more, had been introduced by the Government in 2006 as Bill C-9, but was not passed into law. As Allan Manson observes in “The Reform of Sentencing in Canada, note 163 at 467, the eventual role of the “controversial and enigmatic conditional sentence … remains to be determined.”
[205] Manson, note 163 at 468. For a detailed recent analysis of these provisions, see Gilles Renaud, The Sentencing Code of Canada. Principles and Objectives (Markham: LexisNexis Canada Inc. 2009).
[206] Criminal Code, note 9, s.717.
[207] Criminal Code, note 9, s.718.
[208] Criminal Code, note 9, s.718.1
[209] Criminal Code, note 9, ss.720-729.
[210] Criminal Code, note 9, s.730(1).
[211] Criminal Code, note 9, ss.731-733.
[212] Criminal Code, note 9, ss.734-737.
[213] Criminal Code, note 9, ss.738-741.
[214] Criminal Code, note 9, s.742.1.
[215] Criminal Code, note 9, s.743.
[216] Criminal Code, note 9, s.718.2(a). Examples are crimes motivated by hate or prejudice (s.718.2(a)(i)); abuse of the offender’s spouse (s.718.2(a)(ii)) or of a person under 18 years old (s.718.2(a)(ii.1)). Abuse of a position of trust is another example: s.718.2(a)(iii).
[217] Criminal Code, note 9, s.718.2(b): the principle of parity or consistency.
[218] Criminal Code, note 9, s.718.2(c): the principle of totality.
[219] Criminal Code, note 9, s.718.2(d): the principle of restraint.
[220] Criminal Code, note 9, s.718.2(e): the principle of restraint and aboriginal persons.
[221] Manson, note 163 at 468.
[222] Manson, note 163 at 468
[223] R. v. Gladue, [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19 (QL) [Gladue].
[224] Gladue, note 223 [QL] at para. 39. See also R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, [2000] S.C.J. No. 11 (QL) [Wells] applying the Gladue case.
[225] R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, [2000] S.C.J. No. 6 (QL) [Proulx].
[226] Proulx, note 225 at [QL] para. 14.
[227] The use of this phrase was popularized by John Hogarth, Sentencing as a Human Process (Toronto: University of Toronto Press, 1971).
[228] R. v. Hamilton (2004), 72 O.R. (3d) 1, [2004] O.J. No. 3252 at para. 1(QL) (C.A.) [Hamilton]
[229] Hamilton, note 228 at [QL] para. 87.
[230] R. v. McDonnell, [1997] 1 S.C.R. 948, [1997] S.C.J. No. 42 at para. 29 (QL) [McDonnell].
[231] Dale E. Ives, “Inequality, Crime and Sentencing: Borde, Hamilton and the Relevance of Social Disadvantage in Canadian Sentencing Law” (2004), 30 Queen’s L.J.114 at 118.
[232] Ives, note 231 at 138.
[233] Anthony N. Doob, “Punishment in Late-Twentieth-Century Canada: An Afterword” in Strange, Carolyn, ed., Qualities of Mercy: Justice, Punishment and Discretion (Vancouver: University of British Columbia Press, 1996) at 168.
[234] Manson, note 163 at 472. See too Kenneth Jull, “Reserving Rooms in Jail: A Principled Approach” (1999), 42 Crim. L.Q. 67 at 77-79.
[235] Andrew J. Ashworth, “Sentencing Reform Structures” (1992), 16 Crime & Just. 181 at 189.
[236] Roberts, note 198 at 223.
[237] Clayton C. Ruby, Sentencing, 7th ed. (Markham: LexisNexis Canada Ltd., 2008) at 21.
[238] Allan Manson, The Law of Sentencing (Toronto: Irwin Law, 2001) at 80.
[239] J.V. Decore, “Criminal Sentencing: The Role of the Canadian Courts of Appeal and the Concept of Uniformity” (1963-64), 6 Crim. L.Q. 324.
[240] Decore, note 239 at, 334. See also Julian V. Roberts and Andrew von Hirsch, “Legislating the Purpose and Principles of Sentencing” in Julian V. Roberts and David P. Cole, eds., Making Sense of Sentencing (Toronto: University of Toronto Press) at 49.
[241] Decore, note 239 at 375.
[242] Hermann Mannheim, “Some Aspects of Judicial Sentencing Policy” (1958), 67 Yale L.J. 961 at 962.
[243] Andrew von Hirsch, Doing Justice: The Choice of Punishments (New York: Hill and Wang, 1976) at 32.
[244] Molly Cheang, Sentencing: A Study in the Proper Allocation of Responsibility (Osgoode Hall Law School, York University: Ph.D. dissertation, 1974) at 290.
[245] T.S. Palys and Stan Divorski, “Explaining Sentence Disparity” (1986), 28 Cdn. Journal of Criminology 347 at 360.
[246] Roberts, note 198 at 239. See also Roberts, note 239 at 60.
[247] Law Reform Commission of Canada, note 28 at 2.
[248] Law Reform Commission of Canada, note 30 at 38.
[249] Wholesale Travel Group Inc, note 11 at para. 134 (QL).
[250] Archibald, note 7 at 12-5.
[251] Canadian Environmental Protection Act, 1999, note 130.
[252] Pardy, note 126 at 187 defines the polluter pays principle as a principle of liability that, “whenever possible, the actor that causes pollution damage should pay for restoration, compensation and future prevention.”
[253] Imperial Oil Canada, note 128 at [QL] para. 23.
[254] Interpretation Act, R.S.C. 1985, c.I-21 [Interpretation Act].
[255] Archibald, note 7 at 12-6.
[256] Archibald, note 7 at 12-7.
[257] Provincial Offences Act, note 3, s.2(1).
[258] Archibald, note 7 at 12-7.
[259] Environmental Protection Act, R.S.O. 1990, c.E.19 [Environmental Protection Act (Ont.)].
[260] Environmental Protection Act (Ont.), note 259, s.188.1(1).
[261] Public Health Act (B.C.), note 133
[262] Public Health Act (B.C.), note 133, s.105.
[263] Public Health Act (B.C.), note 133, s.106.
[264] Provincial Offences Act, note 3, s.72(1).
[265] Provincial Offences Act, note 3, s.72(7).
[266] Provincial Offences Act, note 3, s.72(3)(b).
[267] Offence Act, R.S.B.C. 1996, c.338 [Offence Act (B.C.)].
[268] Offence Act (B.C.), note 267, s.89(4). The six month limit of probation coincides with the six month limit of imprisonment under s.4 of the Offence Act, as probation was “designed to be a substitute for prison”: see Verhulst, note 136 at 290. This contrasts with Ontario’s Provincial Offences Act, note 3, s.72(4), where probation orders may be made for a maximum of two years.
[269] Libman, note 39 at 11-20. See also Berger, note 140 at 7-13.
[270] Law Reform Commission of Canada, note 48 at 16.
[271] R. v. Fraser Inc., note 138..
[272] R. v. 100 Mile House, note 145.
[273] Archibald, note 7 at 12-9.
[274] Verhulst, note 136 at 282.
[275] Criminal Code, note 9, s.675(1)(b) [appeal by the defendant]; s.676(1)(d) [appeal by the Attorney General].
[276] Provincial Offences Act, note 3, s.131(1) [appeals under Part III (information)]; s.139(1) [appeals under Parts I and II (tickets)].
[277] Provincial Offences Act, note 3, ss.131(2), 139(2).
[278] Provincial Offences Act, note 3, ss.131(3), 139(4).
[279] R. v. Shropshire, [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52 at para 46 (QL) [Shropshire]: “An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought to have been made. The formulations of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence should only be made if the court of appeal is convinced it is not fit.” See further in this regard R. v. C.A. M., [1996], 1 S.C.R. 500, [1996] S.C.J. No. 28 at para. 89 (QL) [C.A.M.]; Proulx, note 234 at para. 123 (QL); R. v. G.W., [1999] 3 S.C.R. 597, [1999] S.C.J. No. 37 at paras. 18-19 (QL) [G.W.]; McDonnell, note 229 at [QL] paras 14-17.
[280] There is a distinction, however, between the “principle” as opposed to “fitness” of sentence, the former putting in issue the legality of the sentence: see R. v. Gardiner, [1982] 2 S.C.R. 368, [1982] S.C.J.No. 71 (QL). [Gardiner]
[281] Cotton Felts Ltd., note 25.
[282] Occupational Health and Safety Act (Ont.), note 55.
[283] Cotton Felts Ltd., note 25 at [QL] para. 19.
[284] Cotton Felts Ltd., note 25 at [QL] para. 22.
[285] Cotton Felts Ltd., note 25 at [QL] para. 23. Interestingly, despite making these sweeping pronouncements in the judgment, the Court concluded its reasons at [QL] para. 24 by referring to the discretion of the trial judge to impose a fine, even if it would have been disposed to impose a greater or lesser fine, noting that “a fine is ‘peculiarly in the discretion of the trial judge – a discretion with which an appellate court should not lightly interfere’”.
[286] R. v. Inco Ltd. (2000), 132 O.A.C. 268, [2000] O.J. No. 1868 (QL) [Inco Ltd.]. One of the convictions was set aside on appeal. Hence, the Crown’s sentence appeal to the Court of Appeal proceeded on two counts only.
[287] Inco Ltd., note 286 at [QL] para. 4.
[288] Inco Ltd., note 286 at [QL] para. 5.
[289] R. v. Terroco Industres Ltd., 2005 ABCA 141, 367 A.R. 1, 41 Alta. L.R. (4th) 1, [2005] A.J. No. 361 (QL). [Terroco Industries Ltd.]. The test for hearing appeals in regulatory offences cases under the Alberta legislation, like Ontario, is set at a high threshold, requiring a judge of the Alberta Court of Appeal to be satisfied that the case “involves question of law of sufficient importance to justify a further appeal”: Provincial Offences Procedure Act, R.S.A. 2000, c.P-34, s.19(1) [Provincial Offences Procedure Act (Alta.)].
[290] Dangerous Goods Transportation and Handling Act, S.A. 1998, c.D-3.5 [Dangerous Goods Transportation and Handling Act (Alta.)].
[291] Environmental Protection and Enhancement Act, S.A. 1992 c.E-13.3. [Environmental Protection and Enhancement Act (Alta.)]
[292] Terroco Industries Ltd., note 289 at para. 34 (QL). One of the earliest cases to advocate this approach is R. v. Kenaston Drilling (Arctic) Ltd. (1973) 12 C.C.C. (2d) 383, [1973] N.W.T.J. No. 1 at para. 13 (QL) (S.C.) [Kenaston Drilling (Arctic) Ltd.]. See also R. v. United Keno Hill Mines Ltd. (1980), 10 C.E.L.R. 43, [1980] Y.J. No. 10 at para. 6 (QL) (T.C.) [United Keno Hill Mines Ltd.].
[293] Terroco Industries Ltd., note 289 at [QL] para. 35.
[294] Terroco Industries Ltd., note 289 at [QL] para. 45. In Kenaston Drilling (Arctic) Ltd., note 292 at [QL] para. 13 the Court stated in this regard: “But surely the test to apply in approaching the question of sentence should be less a concern of what the damage was but more a concern of what the damage might have been.”
[295] Terroco Indutsries Ltd., note 289 at [QL] para. 53.
[296] Terroco Industries Ltd., note 289 at [QL] para. 66.
[297] Terroco Industries Ltd., note 289 at [QL] paras 74, 76.
[298] United Keno Hill Mines Ltd., note 292.
[299] United Keno Hill Mines Ltd., note 292 at [QL] para. 17.
[300] United Keno Hill Mines Ltd., note 292 at [QL] para. 39.
[301] United Keno Hill Mines Ltd., note 292. In a far-ranging and prescient discussion of the need for courts to be given the power to require “complete access to internal corporate allocations of responsibility” [QL] (para. 49), additional sentencing options and non-criminal governmental tools were recommended, including imposing statutory duties of an affirmative duty on senior echelon corporate officials to control corporate activities, the power to order restitution against corporate offenders or officials, licence suspension or revocation orders, and diversion schemes. The genesis of this “special approach” required for corporate offenders who commit environmental offences, as discussed in cases such as United Keno Hill Mines Ltd., is outlined by Robert Elliot Pollock, Corporate executive liability for environmental offences: A comparison of the Ontario and Untied States approach. (Osgoode Hall Law School, York University: LL.M thesis, 1994) at 98.
[302] United Keno Hill Mines Ltd., note 292 at [Ql] para. 9. Stuart CJ at [QL] paras 7-8 traced the history of punishment provisions for pollution, ranging from capital punishment in England in 1307 for violating air pollution standards, to the twentieth century and late 1960’s where pollution was regarded as a “minor if not trivial offence.” In Canada, legislative amendments subsequently increased fines from $500 to $10,000 whereas in the United States jail terms, large fines and civil liabilities were enacted for environmental violations. Indeed, at the time of the Supreme Court of Canada’s decision in Sault Ste. Marie, note 33, which was released shortly before United Keno Hill Mines Ltd., fine provisions for pollution offences were still relatively modest compared to their present levels.
[303] R. v. Schulzke , 2008 SKPC 149, [2008] S.J. No. 790 (QL) [Schulzke].
[304] Schulzke, note 303 at [QL] para. 110.
[305] Schulzke, note 303 at [QL] para. 111.
[306] R. v. Abbott, 2008 BCCA 198, 81 B.C.L.R. (4th) 16, [2008] B.C.J. No. 824 (QL) [Abbott]. Appeals to the British Columbia Court of Appeal in a regulatory offences case require the granting of leave to appeal “on any ground that involves a question of law alone”: Offence Act (B.C.), note 266, s.124(1).
[307] Health Act, R.S.B.C. 1996, c.179 [Health Act (B.C.)].
[308] Abbott, note 306 at [QL] para. 34.
[309] Abbott, note 306 at [QL] para. 49.
[310] Archibald, note 7 at 12-12- 12-16.
[311] Jamie Benidickson, Environmental Law, 3rd ed. (Toronto: Irwin Law Inc., 2009) at 183.
[312] Canada Shipping Act, note 132.
[313] Canada Shipping Act, note 132, s. 664(2).
[314] P. Puri, “Sentencing the Criminal Corporation” (2001), 39 Osgoode Hall L.J. 611 at 620.
[315] Berger, note 140 at 7-45.
[316] Environmental Enforcement Act (Ont.), note 58. This legislation also put in place administrative environmental penalties which are absolute liability in nature: see Rick Libman, “Bill 133 and ‘Environmental Penalties’: Absolute Liability when Necessary but Necessarily Absolute Liability?” (2005), 16 C.E.L.R. (3d) 155.
[317] Environmental Protection Act, R.S.O. 1990, c.E.19 [Environmental Protection Act (Ont.)].
[318] Ontario Water Resources Act, R.S.O. 1990, c.O.40. [Ontario Water Resources Act]
[319] Environmental Enforcement Act (Ont.), note 58, s.59 enacting s.188.1(1) to the Environmental Protection Act(Ont.), note 317.
[320] Environmental Enforcement Act (Ont.), note 58, s.36 enacting s.110.1(1) to the Ontario Water Resources Act, note 318.
[321] Environmental Enforcement Act (Ont.), note 58, s.59 enacting s.188.1(3) to the Environmental Protection Act, note 317; Environmental Enforcement Act (Ont.), note 58, s.36 enacting s.110.1(3) to the Ontario Water Resources Act, note 318. A similar provision appears in the Regulatory Modernization Act, 2007, S.O. 2007, c.4, s.15(4) [Regulatory Modernization Act (Ont.)], which requires the Court to indicate, where the prosecutor is of the opinion that a previous conviction constitutes an aggravating factor, whether it is imposing a “more severe penalty” having regard to the previous conviction, or, alternatively, if the court decides that the previous conviction does not “justify a more severe penalty”, the reasons for that decision.
[322] Law Reform Commission of Canada, note 48.
[323] Law Reform Commission of Canada, note 48 at 7.
[324] Law Reform Commission of Canada, note 48 at 2.
[325] Law Reform Commission of Canada, note 48 at 5.
[326] This point is also made by C.L.Saga, in an article published shortly before the Law Reform Commission’ study paper, Sentencing in environmental cases, note 48, entitled “Regulatory Offences, Infractions and Alternative Compliance Measures” (1984), 42 U. Toronto Fac. L. Rev. 25 at 34, where it was noted that, for pollution offences, the gravity and risk of harm varies from case to case.
[327] Law Reform Commission of Canada, note 48 at 6.
[328] Law Reform Commission of Canada, note 48 at 6.
[329] Law Reform Commission of Canada, note 48 at 7.
[330] Law Reform Commission of Canada, note 48 at 8.
[331] Sherrin, note 79 at 2.
[332] Sherrin, note 79, uses the example of the relatively low penalties imposed for environmental offences as the basis for his examination as to whether the distinction between criminal offences and regulatory offences under the Charter of Rights ,note 85, is justified by the penalties imposed for such offences.
[333] Law Reform Commission of Canada, note 48 at 16.
[334] United Keno Hill Mines Ltd., note 292.
[335] Law Reform Commission of Canada, note 48 at 40.
[336] Law Reform Commission of Canada, note 48 at 41.
[337] Law Reform Commission of Canada, note 48 at 42-43. The authors went on to recommend a number of measures that reflected, in their view, the civil nature of public welfare offences, such as a shift in the onus of proof of ability to pay, or illegal gain, to the defendant; discovery by the crown; or a separate trial of the “quantum issue” before a different court official than the trial judge, such as a master in civil proceedings. In support of its position, the Commission pointed to the fact that courts had five years’ experience in applying Sault Ste. Marie, note 33, yet the Ontario Court of Appeal in Cotton Felts Ltd., note 25, stated that the range for fines in public welfare offences appeared to be too low.
[338] Chappell, note 124 at 35. This point is also made by Murray Rankin, “Economic Incentives for Environmental Protection: Some Canadian Approaches” (1991), 1 J.E.L.P. 241 at 244, who concluded in his study of penalties imposed for infractions of environmental statutes that most fines were “very low.” By way of illustration, of 201 polluters who were fined between January 1984 and June 1989 for contravening the Waste Management Act, R.S.B.C. 1996, c.482 [Waste Management Act (B.C.)], the average fine was $723., with the majority of such fines being in the range of $100-$200.
[339] Chappell, note 124 at 36.
[340] See Pollock, note 301 at 117-120, explaining the operation of the U.S. sentencing guidelines to environmental offences. A fine is to be imposed in all cases, except where the defendant establishes he/she is unable to pay, and is unlikely to pay any fine. The amount of the fine is determined by reference to a fine table. Suspended sentences are not available under the guidelines; imprisonment is considered the norm, not the exception.
[341] Pollock, note 301 at 73.
[342] Chappell, note 124 views the issue through the lens of enforcement strategies, as evidenced by the title of the chapter where he made these observations: “A Matter of Enforcement: Or No More Mr. Nice Guy.” Swaigen, on the other hand, in his subsequent publication, Regulatory Offences in Canada. Liability & Defences, note 37 at 227-228, stated that the problem of sentencing disparity and inconsistency in fine levels was best left to appellate courts which could overturn “inappropriate penalties” and establish the “appropriate range of penalties.”
[343] Elaine L. Hughes, “Sentencing Environmental Offenders: Objectives and Principles” (1994), 4 J.E.L.P. 185 at 189.
[344] John D. Wilson, “Re-thinking Penalties for Corporate Environmental Offenders: A View of the Law Reform Commission of Canada’s Sentencing in Environmental Cases” (1986), 31 McGill L.J. 313.
[345] Wilson, note 344 at 325.
[346] Wilson, note 344 at 321.
[347] Puri, note 314 at 614.
[348] Competition Act, note 50.
[349] Canada Business Corporations Act, R.S.C. 1985, c. C-44 [Canada Business Corporations Act].
[350] Ontario Business Corporations Act, R.S.O. 1990, c.B.16 [Business Corporations Act (Ont.)].
[351] Income Tax Act, R.S.C. 1985, c.1 (5th Supp.) [Income Tax Act].
[352] John Swaigen and David Estrin, Environment on Trial. A Guide to Ontario Environmental Law and Policy, 3rd ed. (Toronto: Emond Montgomery Publications Ltd., 1993) at 454.
[353] Sidney A. Shapiro and Randy S. Rabinowitz, “Punishment Versus Cooperation in Regulatory Enforcement: A Case Study of OSHA” (1997), 49 Admin. L. Rev. 713 at 762.
[354] Verhulst, note 136.
[355] Offence Act (B.C.), note 267.
[356] Verhulst, note 136 at 282.
[357] Public Health Act (B.C.), note 133. Sentencing is addressed under Division 3 (sentencing) of Part 8 (administrative penalties, offences and sentencing) of the Act, and contains sections on the purposes and principles of sentencing for regulatory offences: s.105 determining purpose; s.106 purposes of sentence. This legislation went into effect on 31 March 2009.
[358] Verhulst, note 136 at 282.
[359] Verhulst, note 136.
[360] Offence Act (B.C.), note 267.
[361] Under this approach, each province would be required to amend their respective provincial offences legislation of general application. In Ontario, the Provincial Offences Act, note 3, is the governing statute. The desirability of providing a statement of sentencing purposes and principles in a statute of general application, as opposed to one that does not apply to other statutes, as is the case with the Public Health Act (B.C.), note 133, is discussed further under Part IV of this research paper.
[362] Verhulst, note 136 at 283.
[363] Verhulst, note 136 at 283 cites in this regard Richard Johnstone [From Fact to Fiction – Rethinking OHS Enforcement (Australia: National Research Center for OHS Regulation, July 2003, Working Paper No. 11) who argues that regulated persons undergo three stages: (1) committing, by senior management, to compliance (2) learning what procedures, technologies, etc are necessary for compliance (3) institutionalizing compliance by implementing risk management systems and normalizing compliance as part of corporate behavior.
[364] Verhulst, note 136 at 283.
[365] Verhulst, note 136 at 283.
[366] Verhulst, note 136 at 287. This practice has originated in the United Kingdom where counsel are encouraged to submit a “Friskies Schedule” which is a joint submission between the Crown and defence stating those factors which are agreed as being the “relevant mitigating and aggravating features that the court should take into account.” The name is derived from R. v. Friskies Petcare (UK) Ltd., [2000] EWCA Crim 95, [2000] 2 Cr App R (S) 401, [2000] E.W.J. J. No. 1568 at para. 2 (QL) (C.C.A.) [Friskies Petcare (U.K.) Ltd.]. The Court of Appeal, Criminal Division, added that it strongly recommended this procedure be routinely adopted in Health and Safety Act prosecutions. It has become an accepted practice in the Crown Court and Magistrates’ Courts to produce “Friskies Schedules”: see Neil Parpworth, “Environmental Offences: The Need for Sentencing Guidelines in the Crown Court,” [2009] J.P.L. 18 at 28; Martha Grekos, “Environmental Fines – All Small Change?”, [2004] J.P.L. 1330 at 1332-1333.
[367] Verhulst, note 136 at 288.
[368] Verhulst, note 136, recommends lengthening the period of probation orders to at least three years in order to give effect to this sentencing principle. This period is the current maximum period that probation may be imposed under the Criminal Code, note 9, s.732.2(2)(b); however, under the Offence Act (B.C.), note 267, s.89(4), probation orders are currently limited to a maximum term of six months; under the Ontario Provincial Offences Act, note 3, s.72(4), probation may be imposed for up to 2 years.
[369] Verhulst, note 136 at 291.
[370] Verhulst, note 136 at 292.
[371] Verhulst, note 136 at 295.
[372] Public Health Act (B.C.), note133.
[373] Public Health Act (B.C.), note 133, s.105(1).
[374] Public Health Act (B.C.), note 133, s..105(2).
[375] Public Health Act (B.C.), note 133, s.106.
[376] Public Health Act (B.C.), note 133, s.107.
[377] Public Health Act (B.C.), note 133, s.108.
[378] Public Health Act (B.C.), note 133, s.105(3).
[379] Public Health Act (B.C.), note 133, s.106(1)(a)
[380] Public Health Act (B.C.), note 133, s.106(1)(b)
[381] Public Health Act (B.C.), note 133, s.106(2).
[382] Public Health Act (B.C.), note 133, s.106(3).
[383] Public Health Act (B.C.), note 133, s.106(4).
[384] Public Health Act (B.C.), note 133.
[385] K.E. Jull, Consultation on Market Surveillance Administrator Proceedings Before the Alberta Utilities Commission (Bulletin 2009-15) (Discussion Paper, June 30, 2009)
[386] Alberta Utilities Commission Act, S.A. 2007, c.A-37.2. [Utilities Commission Act (Alta.)]
[387] Utilities Commission Act (Alta.), note 386, s.63(2)(a).
[388] Jull, note 385 at 14.
[389] Jull, note 385 at 14.
[390] Office of the Superintendent of Financial Institutions Act ,R.S.C. 1985, c.18.[Office of the Superintendent of Financial Institutions Act]
[391] Office of the Superintendent of Financial Institutions Act, note 390, s.25(1)(b).
[392] Office of the Superintendent of Financial Institutions Act, note 390, s.25(1)(c).
[393] Office of the Superintendent of Financial Institutions Act, note 390, s.25(2)(a).
[394] Office of the Superintendent of Financial Institutions Act, note 390, s.25(2)(b).
[395] Office of the Superintendent of Financial Institutions Act, note 390, s.26.
[396] Securities Act (Ont.), note 56.
[397] Securities Act (Ont.), note 56, s.122(1).
[398] Jull, note 385 at 14.
[399] Jull, note 385 gives the example of theft under $5,000, contrary to s.334 of the Criminal Code, note 9, to illustrate the difference in penalty provisions based on the procedure that the prosecutor elects to follow: where the prosecutor elects to proceed by indictment, the maximum penalty is imprisonment for two years; where the prosecutor elects to proceed by summary conviction, the maximum penalty is a fine of $2,000, or imprisonment for six months, or both.
[400] Verhulst, note 136 at 282.
[401] 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241, [2001] S.C.J. No. 42 at para. 1(QL) [Spraytech].
[402] Rabbitt, note 116.
[403] Rabbitt, note 116.The agencies were comprised of two consumer protection agencies: National Highway Traffic Safety Administration, Food and Drug Administration; two worker safety agencies: Occupational Safety and Health Administration, Mine Safety and Health Administration, and an environmental agency: Environmental Protection Agency.
[404] Rabbitt, note 116 at 119.
[405] Rabbitt, note 116.
[406] Neil Gunningham, Safeguarding the Worker. Job Hazards and the Role of the Law (Sydney: The Law Book Company Limited, 1984) at 325.
[407] Rabbitt, note 116 at 301.
[408] Swaigen, note 37 at xxxv.
[409] Wholesale Travel Group Inc., note 11.
[410] Wholesale Travel Group Inc., note 11 at [QL] para. 122.
[411] Cotton Felts Ltd., note 25.
[412] Occupational Health and Safety Act (Ont.), note 55.
[413] Friskies Petcare (U.K.) Ltd , note 366.
[414] R. v. F. Howe & Son (Engineers) Ltd [1998] EWCA Crim 3154, [1999] 2 All E.R. 249, [1999] 2 Cr. App. R. (S.) 37 (C.C.A.) [Howe & Son (Engineers) Ltd.]
[415] Health and Safety at Work etc. Act 1974 (c.37).[Health and Safety at Work Act (U.K.)]
[416] Cotton Felts Ltd., note 25.
[417] Cotton Felts Ltd., note 25 at [QL] para. 19.
[418] Provincial Offences Act, note 3, ss. 131(2), 139(2).
[419] Cotton Felts Ltd., note 25.
[420] R. v. Ellis-Don Ltd., [1992] 1 S.C.R. 840, [1992] S.C.J. No. 33 (QL). [Ellis-Don Ltd.]
[421] Wholesale Travel Group Inc., note 11.
[422] R. v. Ellis-Don Ltd., [1987] O.J. No. 1669 (QL) (Dist.Ct.). [Ellis-Don Ltd.]
[423] R. v. Ellis-Don Ltd. (1990), 1 O.R. (3d) 193, 42 O.A.C. 49, [1990] O.J. No. 2208 (Q.L.) [Ellis-Don Ltd.]
[424] Ontario (Ministry of Labour) v.Bruno’s Contracting (Thunder Bay) Ltd., 2008 ONCA 495, 237 O.A.C. 311, [2008] O.J. No. 2442 (QL) [In Chambers]. [Bruno’s Contracting (Thunder Bay) Ltd.]
[425] R. v. Henry Heyink Construction Ltd. (1999), 118 O.A.C. 22261, [1999] O.J. No. 238 (QL). [Henry Heyink Construction Ltd.]
[426] Inco Ltd., note 286.
[427] R. v. 663374 Ontario Ltd., [1991] O.J. No. 1631 (QL) (Gen.Div.). [663374 Ontario Ltd.]
[428] R. v. Lavis Contracting Co., [1988] O.J. No. 1872 (QL) (Dist.Ct.). [Lavis Contracting Co.]
[429] R. v. Di Franco, [2008] O.J. No. 879 (QL) (S.C.J.). [Di Franco]The terms of probation are not specified in the judgment, although it was noted that the defendant was willing to take educational courses respecting “safety in the workplace.”
[430] R. v. Stelco Inc., [2006] O.J. No. 3332 (QL) (S.C.J.).[Stelco Inc.]
[431] R. v. Inco Ltd., [2001] O.J. No. 4938 (QL) (S.C.J.). [Inco Ltd.]
[432] R. v. General Scrap Iron & Metals Ltd., 2003 ABCA 107, 327 A.R. 84, 13 Alta. L.R. (4th) 31, [2003] A.J. No. 390 (QL). [General Scrap Iron & Metals Ltd.] The Court declined to grant leave to appeal against the judgment upholding the trial judge’s decision: see R. v. General Scrap Iron & Metals Ltd., 2003 ABQB 22, 322 A.R. 63, 11 Alta. L.R. (4th) 213, [2003] A.J. No. 13 (QL). [General Scrap Iron & Metals Ltd.]
[433] R. v. Tech-Corrosion Services Ltd , (1986), 68 A.R. 161, 43 Alta. L.R. (2d) 88, [1986] A.J. No. 40 (QL) (Q.B.) [Tech-Corrosion Services Ltd.]
[434] R. v. Fiesta Party Rentals Ltd., [2001] A.J. No. 1778 (QL) (Q.B.). [Fiesta Party Rentals Ltd.]
[435] R. v. Trican Well Service Ltd., 2005 ABQB 904, 389 A.R. 236, [2005] A.J. No. 1720 (QL).[Trican Well Service Ltd.]
[436] R. v. Peter Kiewit Sons Co. (1991), 84 Alta. L.R. (2d) 395, [1991] A.J. No. 302 (QL) (Q.B.). [Peter Kiewit Sons Co]
[437] R. v. Kal Tire Ltd., 2008 ABQB 551, [2008] A.J. No. 992 (QL). [Kal Tire Ltd.]
[438] Occupational Health and Safety Act, R.S.A. 1980, c.O-2.[Occupational Health and Safety Act (Alta.)]
[439] R. v. Independent Automatic Sprinkler Ltd , 2009 ABQB 264, [2009] A.J. No. 476 (QL) [Independent Automatic Sprinkler Ltd.].
[440] Independent Automatic Sprinkler Ltd, note 439 at [QL] para. 10.
[441] Independent Automatic Sprinkler Ltd, note 439 at [QL] para. 21.
[442] R. v. Rose’s Well Services Ltd. (c.o.b. Dial Oilfield Services), 2009 ABQB 266, [2009] A.J. No. 499 (QL). [Rose’s Well Services Ltd.]
[443] Rose’s Well Services Ltd , note 442 at [QL] para. 50.
[444] Rose’s Well Services Ltd., note 442 at [QL] para. 102.
[445] R. v. Rosin, note 148.
[446] R. v. Pederson, 2000 SKQB 255, 194 Sask. R. 102, [2000] S.J. No. 401 (QL) [Pederson].
[447] R. v. Saskatchewan Wheat Pool (1999), 185 Sask. R. 114, [1999] S.J. No. 711 (QL) (Q.B.). [Saskatchewan Wheat Pool]
[448] Saskatchewan Wheat Pool, note 447 at [QL] para. 32.
[449] R. v. Sage Well Services Ltd , 2000 SKQB 259, 194 Sask. R. 65, [2000] S.J. No. 448 (QL) [Sage Well Services Ltd.].
[450] R. v. Winnipeg (City), 2002 MBQB 96, 164 Man. R. (2d) 69, [2002] M.J. No. 122 (QL), aff’d 2002 MBCA 129, 170 Man. R. (2d) 13, [2002] M.J. No. 396 (QL). [Winnipeg]
[451] R. v. Canadian National Railway Co., 2005 MBQB 71, 193 Man. R. (2d) 119, [2005] M.J. No. 104 (QL) [Canadian National Railway Co.].
[452] R. v. Nova Scotia Power Inc. (1999), 173 N.S.R. (2d) 179, [1999] N.S.J. No. 26 (QL) (S.C.) [Nova Scotia Power Inc.].
[453] R. v. Nova Scotia (Minister of Transportation and Public Works) , 2003 NSSC 274, 277 N.S.R. (2d) 11, [2003] N.S.J. No. 558 (QL)[Nova Scotia (Minister of Transportation and Public Works)]
[454] Nova Scotia (Minister of Transportation and Public Works), note 452 at [QL] para. 13.
[455] R. v. Atcon Construction Inc. (1995), 162 N.B.R. (2d) 26, [1995] N.B.J. No. 217 (QL) (Q.B.), aff’d (1995), 168 N.B.R. (2d) 238, [1995] N.B.J. No. 427 (QL) (C.A.) [Atcon Construction Inc.].
[456] R. v. Hub Meat Packers Ltd. (2000), 226 N.B.R. (2d) 33, [2000] N.B.J. No. 133 (QL) (Q.B.). [Hub Meat Packers Ltd.]
[457] The four offences and respective fine amounts comprised: failing to provide immediate notification of an accident ($2,000), disturbing an accident scene ($2,000), failing to take reasonable precautions to safeguard the health of a worker ($7,500), and failing to insure that the machine was installed and repaired according to manufacturer specifications ($7,500).
[458] Hub Meat Packers Ltd., note 456 at [QL] para. 17.
[459] R. v. Corner Brook Pulp and Paper Ltd . (1990), 85 Nfld. & P.E.I.R. 64, [1990] N.J. No. 417 (QL) (S.C.) [Corner Brook Pulp and Paper Ltd.]
[460] R. v. Miller Shipping Ltd . 2007 NLTD 208, 272 Nfld. & P.E.I.R. 305, [2007] N.J. No. 412 (QL) [Miller Shipping Ltd.].
[461] Miller Shipping Ltd., note 460 at [QL] para. 57.
[462] Miller Shipping Ltd., note 460 at [QL] para. 60.
[463] R. v. Miller Shipping Ltd., 2009 NLCA 57, [2009] N.J. No. 274 (QL) [Miller Shipping Ltd.].
[464] Wholesale Travel Group Inc., note 11.
[465] Competition Act, note 50
[466] Combines Investigation Act, note 51.See Wholesale Travel Group Inc., note 11at [QL] para. 142.
[467] Cotton Felts Ltd., note 25.
[468] R. v. Hoffmann-La Roche Ltd. (Nos. 1 and 2) (1981), 33 O.R. (2d) 694, [1981] O.J. No. 3075 at para. 130 (QL) (C.A.) [Hoffman-La Roche Ltd.]. The Court noted in this decision that fines as high as $75,000 were upheld in a previous Combines Investigation Act, note 51, case: see R. v. St. Lawrence Corp. Ltd., [1969] 2 O.R. 305, [1969] O.J. No. 1326 (QL) (C.A.) [St. Lawrence Corp Ltd.]. In another conspiracy to unduly lessen competition case, R. v. Armco Canada Ltd. (1977), 13 O.R. (2d) 32, [1976] O.J. No. 2066 (QL) (C.A.), leave to appeal refused, [1976] 1 S.C.R. vii [Armco Canada Ltd.], fines up to $125,000 were approved on appeal. Both the St. Lawrence Corp. Ltd. and Armco Canada Ltd. decisions were referred to in Cotton Felts Ltd.
[469] Combines Investigation Act, note 51.
[470] Competition Act, note 50.
[471] R. v. Browning Arms Co. of Canada, [1974] O.J. No. 502 (QL) (C.A.). [Browning Arms Co. of Canada]
[472] Brownng Arms Co. of Canada, note 471 at para. 2.
[473] R. v. Steinberg’s Ltd (1976), 13 O.R. (2d) 293, [1976] O.J. No. 2201 (QL) (C.A.).[Steinberg’s Ltd.]
[474] Steinberg’s Ltd., note 473 at [QL] para. 32.
[475] Motor Vehicle Safety Act, R.S.C. 1970, c.26 [Motor Vehicle Safety Act].
[476] R. v. Ford Motor Co. of Canada (1979), 49 C.C.C. (2d) 1,[1979] O.J. No. 964 (QL) (C.A.) [Ford Motor Co. of Canada]
[477] Ford Motor Co. of Canada, note 476 at [QL] para. 54. The maximum fine had been increased to $100,000 after the commencement of proceedings against the defendant.
[478] Cotton Felts Ltd., note 25 at [QL] para. 19.
[479] R. v. A. & M. Records of Canada Ltd. (1980), 51 C.P.R. (2d) 225, [1980] O.J. No. 3910 (QL) (Co.Ct.). [A. & M. Records of Canada Ltd.]
[480] R. v. Epson (Canada) Ltd. (1987), 19 C.P.R. (3d) 195, [1987] O.J. No. 2708 (QL) (Dist.Ct.).[Epson (Canada Ltd]
[481] R. v. Epson (Canada) Ltd. (1990), 32 C.P.R. (3d) 78, [1990] O.J. No. 1003 (QL) (C.A.). [Epson Canada Ltd.]
[482] R. v. Consumers Distributing Co. (1980), 57 C.C.C. (2d) 317, [1980] O.J. No. 290 (QL) (C.A.) [Consumers Distributing Co.].
[483] Consumers Distributing Co., note 482 at [QL] para. 30.
[484] R. v. Consumers Distributing Co., [1981] O.J. No. 304 (QL) (Co.Ct.). [Consumers Distributing Co.]
[485] R. v. A.B.C. Ready-Mix Ltd. (1972), 17 C.P.R. (2d) 91, [1972] O.J. No. 367 (QL) (H.C.) [A.B.C. Ready-Mix Ltd.]
[486] R. v. Canadian Oxygen Ltd., [1991] O.J. No. 1797 (QL) (Gen.Div.). [Canadian Oxygen Ltd.]In a related case, the court also imposed a fine of $1,700,000: see R. v. Canadian Liquid Air Ltd., [1991] O.J. No. 1780 (QL) (Gen.Div.). [Canadian Liquid Air Ltd.]
[487] R. v. Medi-Man Rehabilitation Products, Inc. (1998), 76 O.T.C. 143, [1998] O.J. No. 2709 (QL) (S.C.J.) [Medi-Man Rehabilitation Products, Inc.].
[488] Medi-Man Rehabilitation Products, Inc, note 487 at [QL] para. 12.
[489] R. v. F.W. Woolworth Co, [1992] O.J. No. 1507 (QL) (Gen.Div.). [F.W. Woolworth Co.]
[490] R. v. Canadian General Electric Co. (1977), 35 C.P.R. (2d) 210., [1977] O.J. No. 509 (QL) (H.C.). [Canadian General Electric Co.]
[491] R. v. Total Ford Sales Ltd. (1987), 18 C.P.R. (3d) 404, [1987] O.J. No. 1421 (QL) (Dist.Ct.). [Total Ford Sales Ltd.]
[492] Business Practices Act (Ont.), note 110.
[493] Ontario (Motor Vehicle Dealers Act, Registrar) v. Bechaalani, [2005] O.J. No. 4631 (QL) (S.C.J.). [Bechaalani]
[494] R. v. Serfaty (2006), 81 O.R. (3d) 440, 212 O.A.C. 227, [2006] O.J. No. 2281 (QL). [Serfaty]
[495] Serfaty, note 494 at [QL] para. 32.
[496] Serfaty, note 494 at [QL] para. 33.
[497] Serfaty, note 494 at [QL] para. 35.
[498] Serfaty, note 494 at [QL] para. 40.
[499] Serfaty, note 494 at [QL] para. 41.
[500] Serfaty, note 494 at [QL] para. 42.
[501] Serfaty, note 494 at [QL] para.47.
[502] R. v. Mouyal, 2007 QCCQ 6141, [2007] Q.J. No. 6077 (QL). [Mouyal]
[503] Mouyal, note 502 at [QL] para. 27.
[504] Competition Act, note 50.
[505] Criminal Code, note 9.
[506] Mouyal, note 502 at [QL] para. 40.
[507] R. v. Ocean Construction Supplies Ltd. (1974), 15 C.P.R. (2d) 224, [1974] B.C.J. No. 391 (QL) (S.C.) [Ocean Construction Supplies Ltd.].
[508] Ocean Construction Supplies Ltd., note 507 at [QL] para. 23.
[509] R. v. Ocean Construction Supplies Ltd. (1974), 22 C.P.R. (2d) 340, [1974] B.C.J. No. 118 (QL) (C.A.) [Ocean Construction Supplies Ltd.].
[510] Ocean Construction Supplies Ltd. note 508 at [QL] para. 16.
[511] R. v. Muralex Distributions Inc. (1987), 15 B.C.L.R. (2d) 151, [1987] B.C.J. No. 1496 (QL) (Co.Ct.) [Muralex Distributions Inc.].
[512] R. v. T. Eaton Co. (1974), 17 C.C.C. (2d) 501, [1974] M.J. No. 13 (QL) (C.A.) [T. Eaton Co.].
[513] R. v. Shell Canada Products Ltd. (1990), 65 Man. R. (2d) 1, [1990] M.J. No. 73 (QL) (C.A.) [Shell Canada Products Ltd.].
[514] R. v. Shell Canada Products Ltd. (1989), 25 C.P.R. (3d) 101, [1989] M.J. No. 742 (QL) (Q.B.) [Shell Canada Products Ltd.].
[515] R. v. Bidwell Food Processors Ltd. (1976), 29 C.P.R. (2d) 266,[1976] M.J. No. 272 (QL) (Q.B.).[Bidwell Food Processors Ltd.]
[516] R. v. Giftwares Wholesale Co (1977), 36 C.C.C. (2d) 330, [1977] M.J. No. 307 (QL) (Co.Ct.).[Giftwares Wholesale Co.]
[517] R. v. Giftwares Wholesale Co. (1979), 49 C.C.C. (2d) 322, [1979] M.J. No. 354 (QL) (Co.Ct.) [Giftwares Wholesale Co.].
[518] R. v. Miller’s T.V. Ltd. (1982), 19 Man. R. (2d) 259, [1982] M.J. No. 400 (QL) (Co.Ct.) [Miller’s T.V. Ltd.].
[519] R. v. Aetna Insurance Co. et al (1975), 13 N.S.R. (2d) 693, [1975] N.S.J. No. 425 (QL) (C.A.). [Aetna Insurance Co.]
[520] R. v. Aetna Insurance Co., [1978] 1 S.C.R. 731, [1977] S.C.J. No. 75 (QL) [Aetna Insurance Co.].
[521] R. v. S.S. Kresge Co. Ltd. (1975), 8 Nfld. & P.E.I. R. 415, [1975] P.E.I. J. No. 59 (C.A.) [S.S. Kresge Co.].
[522] R. v. Mad Man Murphy Limited (1983), 45 Nfld. & P.E.I.R. 116, [1983] N.J. No. 168 at para.10 (QL) (Dist.Ct.) [Mad Man Murphy Limited].
[523] Wholesale Travel Group Inc., note 11at [QL] para. 219.
[524] Imperial Oil Canada, note 128 at [QL] para. 23..
[525] Imperial Oil Canada, note 128 at [QL] para. 24.
[526] United Keno Hill Mines Ltd., note 292 at [QL] para. 9
[527] United Keno Hill Mines Ltd., note 292 at [QL] para. 5.
[528] Kenaston Drilling (Arctic) Ltd., note 292 at [QL] para. 13
[529] R v. Bata Industries Ltd. (1992), 7 C.E.L.R. (N.S.) 245 at 293 (Ont.Prov.Div.) [Bata Industries Ltd.].
[530] Ontario Water Resources Act, note 318.
[531] Bata Industries Ltd., note 529 at 294-295.
[532] Bata Industries Ltd., note 529 at 306.
[533] R. v. Bata Industries Ltd. (1993), 14 O.R. (3d) 354, [1993] O.J. No. 1679 (QL) (Gen.Div.) [Bata Industries Ltd.].
[534] R. v. Bata Industries Ltd. (1995), 25 O.R. (3d) 321, [1995] O.J. No. 2691 (QL) (C.A.) [Bata Industries Ltd.].This remedial approach in pollution cases was recently endorses by the English Court of Appeal, Criminal Division, in R. v. Thames Water Utilities Ltd., [2010] EWCA Crim 202 (C.C.A.) [Thames Water Utilities Ltd.].
[535] R. v. Safety-Kleen Canada Inc. (1997), 32 O.R. (3d) 493, [1997] O.J. No. 800 (QL) (C.A.). [Safety-Kleen Canada Inc.]
[536] Safety-Kleen Canada Inc., note 535 at [QL] para. 27. Under the Provincial Offences Act, note 3, appeals to the Ontario Court of Appeal must involve a question of law, otherwise the Court lacks jurisdiction to hear the matter.
[537] R. v. Dow Chemical Canada Inc., [1997] O.J. No. 3301 (QL) (Gen.Div.) [Dow Chemical Canada Inc.].
[538] R. v. Dow Chemical Canada Inc. (2000), 47 O.R. (3d) 577, 130 O.A.C. 26, [2000] O.J. No. 757 (QL) [Dow Chemical Canada Inc.].
[539] Environmental Protection Act (Ont.), note 259.
[540] R. v. Ontario Hydro, [1988] O.J. No. 1673 (QL) (Dist.Ct.) [Ontario Hydro].
[541] R. v. B.E.S.T. Plating Shoppe Ltd. (1986), 1 C.E.L.R. (N.S.) 85, [1986] O.J. No. 706 (QL) (H.C.) [B.E.S.T. Plating Shoppe Ltd.].
[542] R. v. B.E.S.T. Plating Shoppe Ltd. and Siapas (1987), 59 O.R. (2d) 145, 21 O.A.C. 62, [1987] O.J. No. 165 (QL) [B.E.S.T. Plating Shoppe Ltd. and Siapas].
[543] Toronto (Metropolitan) v. Siapas (1988), 3 C.E.L.R. (N.S.) 122, [1988] O.J. No. 1359 (QL) (H.C.).[Siapas]
[544] Toronto (Metropolitan) v. Siapas, [1988] O.J. No. 2564 (QL) (H.C.). [Siapas]
[545] R. v. Shamrock Chemicals Ltd. (1989), 4 C.E.L.R. (N.S.) 315, [1989] O.J. No. 2356 (QL) (Dist.Ct.) [Shamrock Chemicals Ltd.].
[546] Ontario Water Resources Act, note 318.
[547] Environmental Protection Act (Ont.), note 317.
[548] R. v. Rainone Construction Ltd., [1999] O.J. No. 3315 (QL) (S.C.J.) [Rainone Construction Ltd.].
[549] Fisheries Act, note 121.
[550] R. v. Domtar Packaging Red Rock Mill, a Division of Domtar Inc. (2000), 36 C.E.L.R. (N.S.) 307, [2000] O.J. No. 5112 (QL) (S.C.J.) [Domtar Packaging Red Rock Mill]
[551] R. v. Domtar Specialty Fine Papers, a Division of Domtar Inc., [2001] O.T.C. 335, [2001] O.J. No. 1733 (QL) (S.C.J.) [Domtar Specialty Fine Papers].
[552] R. v. Canadian Tire Corp., [2004] O.T.C. 668, [2004] O.J. No. 3129 (QL) (S.C.J.) [Canadian Tire Corp].
[553] Canadian Environmental Protection Act, note 131.
[554] Ozone Depleting Substance Regulations 1998, SOR/99-7. [Ozone Depleting Substance Regulations].
[555] Canadian Tire Corp., note 552 at [QL] para. 101.
[556] Canadian Tire Corp., note 552 at [QL] para. 113.
[557] R. v. Dupont Canada Inc., [1992] O.J. No. 2144 (QL) (Gen.Div.) [Dupont Canada Inc.].
[558] R. v. Matachewan Consolidated Mines Ltd. (1994), 13 C.E.L.R. (N.S.) 156, [1994] O.J. No. 4196 (QL) (Gen.Div.) [Matchewan Consolidated Mines Ltd.].
[559] R. v. Commander Business Furniture Inc., [1994] O.J. No. 313 (QL) (Gen.Div.) [Commander Business Furniture Inc.].
[560] Commander Business Furniture Inc., note 559 at para. 22.
[561] R. v. Canadian Pacific Ltd. (1994), 15 C.E.L.R. (N.S.) 181, [1994] O.J. No. 2573 (QL) (Gen.Div.) [Canadian Pacific Ltd.].
[562] R. v. Lopes (1988), 3 C.E.L.R. (N.S.) 78, [1988] O.J. No. 874 (QL) (Dist.Ct.) [Lopes].
[563] Terroco Industries Ltd., note 289.
[564] Environmental Protection and Enhancement Act (Alta.), note 291.
[565] Dangerous Goods Transportation and Handling Act (Alta.), note 290.
[566] Terroco Industries Ltd., note 289 at [QL] para. 34.
[567] Kenaston Drilling (Arctic) Ltd., note 292 at [QL] para. 13.
[568] Terroco Industries Ltd., note 289 at [QL] para. 53.
[569] Terroco Industries Ltd., note 289 at [QL] para. 63.
[570] Terroco Industries Ltd., note 289 at [QL] para. 74.
[571] Terroco Industries Ltd., note 289 at [QL] para. 76.
[572] Cool Spring Dairy Farms Ltd., note 142.
[573] Cool Spring Dairy Farms Ltd., note 142 at [QL] para. 10.
[574] R. v. Lefebvre, 1999 ABQB 523, 247 A.R. 178, [1999] A.J. No. 801 (QL) [Lefebvre].
[575] Lefebvre, note 574 at [QL] para. 12.
[576] United Keno Hill Mines Ltd., note 292.
[577] Lefebvre, note 574 at [QL] para. 13.
[578] Lefebvre, note 574 at [QL] para. 19.
[579] R. v. Blain’s Custom Ag (99) Ltd., 2004 ABQB 615, [2004] A.J. No. 945 (QL) [Blain’s Custom Ag (99) Ltd.].
[580] Environmental Protection and Enhancement Act (Alta.), note 291.
[581] R. v. Centennial Zinc Plating Ltd., 2004 ABQB 211, 353 A.R. 300, [2004] A.J. No. 319 (QL) [Centennial Zinc Plating Ltd.].
[582] Centennial Zinc Plating Ltd., note 581 at [QL] para. 77.
[583] Abbott, note 306.
[584] Abbott, note 306 at [QL] para. 22.
[585] Abbott, note 306 at [QL] para. 23.
[586] Abbott, note 306 at [QL] para. 32.
[587] Abbott, note 306 at [QL] para. 32.
[588] Abbott, note 306 at [QL] para. 34.
[589] Abbott, note 306 at [QL] para. 49.
[590] R. v. Western Stevedoring Co. (1984), 13 C.E.L.R. 159, [1984] B.C.J. No. 754 (QL) (Co.Ct.) [Western Stevedoring Co.].
[591] R. v. Enso Forest Products Ltd. (1992), 70 B.C.L.R. (2d) 145, [1992] B.C.J. No. 1429 (QL) (S.C.) [Enso Forest Products Ltd.].
[592] No opinion was expressed as to the appropriate quantum of fine as the defendant had not brought an appeal against sentence. Justice Shaw expressed an opinion as to the fitness of sentence in the event that the case was appealed further, and since, as he explained, he had formed a view on the sentence appeal. In fact, the Crown brought such an appeal, which was dismissed in a split decision: R. v. Enso Forest Products Ltd. (1993), 38 B.C.A.C. 74, 85 B.C.L.R. (2d) 249, [1993] B.C.J. No. 2409 (QL) [Enso Forest Products Ltd.].
[593] R. v. Canadian Pacific Forest Products Ltd., [1992] B.C.J. No. 1339 (QL) (S.C.) [Canadian Pacific Forest Products Ltd.].
[594] R. v. Fibreco Pulp Inc. (1993), 10 C.E.L.R. (N.S.) 1, [1993] B.C.J. No. 218 (QL) (S.C.) [Fibreco Pulp Inc.].
[595] Fibreco Pulp Inc., note 594 at [C.E.L.R.] para. 70.
[596] R. v. Fibreco Pulp Inc. (1998), 106 B.C.A.C. 4, [1998] B.C.J. No. 758 (QL) [Fibreco Pulp Inc.].
[597] R. v. Alpha Manufacturing Inc., 2005 BCSC 1644, [2005] B.C.J. No. 2598 (QL) [Alpha Manufacturing Inc.].
[598] Alpha Manufacturing Inc., note 597 at [QL] para. 47.
[599]R. v. Alpha Manufacturing Inc., 2009 BCCA 443, [2009] B.C.J. No. 2169 (QL) [Alpha Manufacturing Inc.].
[600] R. v. Canadian Pacific Railway Co., 2008 BCSC 1681, [2008] B.C.J. No. 2381 (QL) [Canadian Pacific Railway Co.].
[601] Fisheries Act, note 121.
[602] Canadian Pacific Railway Co., note 600 at [QL] para. 17.
[603] R. v. Churchbridge (Regional Municipality), 2005 SKQB 524, 273 Sask. R. 29, [2005] S.J. No. 746 (QL) [Churchbridge].
[604] R. v. Echo Bay Mines Ltd., [1984] N.W.T.R. 303, [1984] N.W.T.J. No. 35 (QL) (S.C.) [Echo Bay Mines Ltd.].
[605] Echo Bay Mines Ltd., note 604 at [QL] para. 23.
[606] Kenaston Drilling (Arctic) Ltd., note 292.
[607] Kenaston Drilling (Arctic) Ltd., note 292 at [QL] para. 14.
[608] R. v. Placer Development Ltd., [1983] N.W.T.R. 351, [1982] N.W.T.J. No. 37 (QL) (S.C.) [Placer Development Ltd.].
[609] R. v. Northwest Territories Power Corp., [1990] N.W.T.R. 125, [1990] N.W.T.J. No. 38 (QL) (S.C.) [Northwest Territories Power Corp.].
[610] R. v. Northwest Territories (Commissioner), [1994] N.W.T.R. 354, [1994] N.W.T.J. No. 58 (QL) (S.C.) [Northwest Territories].
[611] The payment order was also varied to state that while the funds were to be used to promote the conservation and protection of fish or fish habitat in the waters of or adjacent to the Northwest Territories, such use could also include the construction of an aquarium at Iqaluit, and the funding or conduct of programs approved by the Department of Environment of Canada related to sewage and waste treatment and disposal in order to meet the requirements of the Fisheries Act, note 121, in relation to the Northwest Territories.
[612] R. v. Iqaluit (City), [2002] Nu. J. No. 1 (QL) (C.J.) [Iqaluit].
[613] The terms of this order made under the Fisheries Act, note 121, appear in R. v. Iqaluit (City), [2002] Nu. J. No. 2 (QL) (C.J.) [Iqaluit]. The defendant was ordered to draft and implement a standard operating procedures manual for the City’s sewage lift stations, and to develop a training course regarding spill, response and clean-up of sewage and other pollutants, as well as training its Public Works’ employees pursuant to this course. The manual and training course were to be approved by Environment Canada before the manual was made effective, implemented and the training commenced.
[614] R. v. Services environnementaux Laidlaw (Mercier) Ltée , [1998] R.J.Q. 276, [1997] Q.J. No. 4156 (QL) (C.S.) [Services environnementaux Laidlaw (Mercier) Ltée].
[615] Services environnementaux Laidlaw (Mercier) Ltée, note 614 at [QL] para. 16.
[616] Services environnementaux Laidlaw (Mercier) Ltée., note 614 at [QL] para. 18.
[617] R. v. Vac Daniels Ltd. (1997), 159 N.S.R. (2d) 399, [1997] N.S.J. No. 160 (QL) (C.A.) [Vac Daniels Ltd.].
[618] Environmental Protection Act, S.N.S. 1973, c.6 [Environmental Protection Act (N.S.)].
[619] Vac Daniels Ltd., note 617 at [QL] para. 7.
[620] R. v. Oxford Frozen Foods Ltd. (1989), 91 N.S.R. (2d) 334, [1989] N.S.J. No. 500 (QL) (Co.Ct.) [Oxford Frozen Foods Ltd.].
[621] R. v. B.A. Denton Management Ltd. (1993), 127 N.S.R. (2d) 386, [1993] N.S.J. No. 542 (QL) (S.C.) [B.A. Denton Management Ltd.].
[622] B.A. Denton Management Ltd., note 621 at [QL] para. 5.
[623] R. v. Fraser Papers Inc. (Canada), 2001 NBQB 191, 242 N.B.R. (2d) 373, [2001] N.B.J. No. 404 (QL) [Fraser Papers Inc. (Canada)].
[624] Clean Air Act, S.N.B. 1997, c.C-5.2 [Clean Air Act (N.B.)].
[625] R. v. Gemtec Ltd., 2007 NBQB 199, 321 N.B.R. (2d) 200, [2007] N.B.J. No. 202 (QL) [Gemtec Ltd.].
[626] Gemtec Ltd., note 625 at [QL] para. 54.
[627] Gemtec Ltd., note 625 at [QL] para. 61.
[628] R. v. Lundrigan Group Ltd., [1990] N.J. No. 449 (QL) (S.C.) [Lundrigan Group Ltd.].
[629] Lundrigan Group Ltd., note 628 at para. 58.
[630] R. v. Pennecon Ltd. [1996] N.J. No. 9 (QL) (S.C.) [Pennecon Ltd.].
[631] Department of Environment and Lands Act, R.S.N. 1990, c.D-11 [Department of Environment and Lands Act (Nfld)].
[632] At trial the director of the company was also found guilty and fined $500; however, an acquittal was substituted on appeal on the basis that the Crown had not established a prima facie case against him.
[633] Pennecon Ltd., note 630 at para. 22..
[634] R. v. Newfoundland Recycling Ltd., 2008 NLTD 38, 274 Nfld. & P.E.I.R. 83, [2008] N.J. No. 71 (QL) [Newfoundland Recycling Ltd.].
[635] R. v. Tahkuna (The) (2002), 210 Nfld. & P.E.I.R. 68, [2002] N.J. No. 62 (QL) (S.C.) [Tahkuna].
[636] R, v. Newfoundland Recycling Ltd., 2009 NLCA 28, 284 Nfld. & P.E.I.R. 153, [2009] N.J. No. 105 (QL) [Newfoundland Recycling Ltd.].
[637] Cotton Felts Ltd., note 25.
[638] Services environnementaux Laidlaw (Mercier) Ltée, note 614.
[639] B.A. Denton Management Ltd., note 621.
[640] Abbott, note 306.
[641] Centennial Zinc Plating Ltd., note 581.
[642] Campbell, note 122 at 13.
[643] Campbell, note 122 at 32.
[644] See for example Campbell, note 122; Hughes, note 122; Strickland, note 122; Verhulst, note 136. The limitations on the use of fines generally is discussed by the Law Reform Commission of Canada, Sentencing in environmental cases, note 48. This report, it should be noted, post-dates the Cotton Felts Ltd. decision, and indeed references it.
[645] Sayre, note 13.
[646] Swaigen, note 37 at xxxv.
[647] Verhulst, note 136 at 283.
[648] R. Glenn Hubbard, Money, the Financial System and the Economy (New York: Addison-Wesley Publishing Company, Inc., 1994) at 384, describes the regulatory cycle, in the context of banking regulation, as consisting of four stages: “financial crisis, regulation, financial innovation, and regulatory response.” Tara Naib, Enron and the Regulatory Cycle (Duke University, thesis, 2002) at 7 compresses the regulatory cycle into three categories: crisis, regulatory response, and innovation, observing that Hubbard’s “regulatory response” moves in the direction from response to regulation.
[649] Gunningham, note 406 at 325.
[650] Neil Gunningham and Richard Johnstone, Regulating Workplace Safety: System and Sanctions (Oxford: Oxford University Press, 1999). See also Neil Gunningham and Peter Grabosky, Smart Regulation. Designing Environmental Policy (Oxford: Clarendon Press, 1998); Gunningham, note 649; Neil Gunningham, Robert A. Kagan, and Dorothy Thornton, Shades of Green. Business, Regulation and Environment (Stanford: Stanford University Press, 2003).
[651] Ayres, note 15. See also John Braithwaite, To Punish or Persuade: Enforcement of Coal Mining Safety (Albany: State University of New York Press, 1985); John Braithwaite, Restorative Justice & Responsive Regulation (New York: Oxford University Press, 2002).
[652] Breyer, note 62.
[653] Archibald, note 7.
[654] Keith Hawkins, Environment and Enforcement. Regulation and the Social Definition of Pollution (Oxford: Clarendon Press, 1984) at 109.
[655] Andrew Hopkins, Making Safety Work. Getting Management Commitment to Occupational Health and Safety (St. Leonards: Allen & Unwin, 1995) at 73.
[656] Glasbeek, note 61 at 301-302.
[657] Archibald, note 7 at12-1.
[658] Archibald, note 7 at 1-16.
[659] Archibald, note 7 at 1-16.
[660] Salter, note 15 at 151. See also Ellen Baar, Positive Compliance Programs: Their Potential as Instruments for Regulatory Reform (Vol. 1) (Ottawa: Department of Justice, 1991) at III-16 respecting risk assessment and safety regulation.
[661] Liora Salter, Mandated Science: Science and Scientists in the Making of Standards (Dordrecht: Kluwer Academic Publishers, 1988) at 1.
[662] G. Bruce Doern and Ted Reed, “Canada’s Changing Science-Bases Policy and Regulatory Regime: Issues and Framework” in G.Bruce Doern and Ted Reed, eds., Risky Business. Canada’s Changing Science-Based Policy and Regulatory Regime (Toronto: University of Toronto Press, 2000) at 7.
[663] Salter, note 661 at 176.
[664] Archibald, note 7 at 1-16.
[665] Breyer, note 62 at 3.
[666] Fazil Mihlar, “The Federal Government and the ‘RIAS’ Process: Origins, Need, and Non-compliance” in G. Bruce Doern, Margaret M. Hill, Michael J. Prince, and Richard J. Shultz, eds., Changing the Rules. Canadian Regulatory Regimes and Institutions (Toronto: University of Toronto Press, 1999) at 281.
[667] Mihlar, note 666.
[668] United Kingdom Treasury, Reducing administrative burdens: effective inspection and enforcement (Hampton Report – Final Report) March 2005 (www.hm-treasury.gv.uk/hampton) at 4.
[669] Archibald, note 7 at 1-10.
[670] Breyer, note 62 at 9.
[671] Breyer, note 62 at 9. See also Archibald, note 7 at 1-17. Douglas Powell, “Risk-Based Regulatory Responses in Global Food Trade: A Case Study of Guatemalan Raspberry Imports into the United States and Canada, 1996-1998” iin G.Bruce Doern and Ted Reed, eds., Risky Business. Canada’s Changing Science-Based Policy and Regulatory Regime (Toronto: University of Toronto Press, 2000) at 135 notes that risk assessment as a component of risk analysis was first formalized by the U.S. National Academy of Sciences through the National Research Council in 1983. The four-pronged model of risk assessment is provided by the NAS-NRC.
[672] Breyer, note 62 at 9.
[673] Breyer, note 62 at 10.
[674] Archibald, note 7 at 1-27.
[675] Powell, note 671 at 137-138.
[676] Breyer, note 62 at 42.
[677] Archibald, note 7 at 1-20.
[678] Archibald, note 7 at 1-34.
[679] Paolo F.Ricci, Environmental and Health Risk Assessment and Management. Principles and Practices (Dordrecht: Springer, 2006) at 37. See also Albert J. Reiss Jr., “The Institutionalization of Risk” in James F. Short Jr., and Lee Clarke, eds., Organizations, Uncertainties, and Risk (Boulder: Westview Press, 1992) at 302.
[680] Ivo Krupka, “The Pest Management Regulatory Agency: The Resilience of Science in Pesticide Regulation” in G. Bruce Doern and Ted Reed, eds., Risky Business. Canada’s Changing Science-Based Policy and Regulatory Regime (Toronto: University of Toronto Press, 2000) at 243. See also Breyer, note 62 at 57.
[681] Bill Jarvis, “A Question of Balance: New Approaches for Science-Based Regulation” in G. Bruce Doern and Ted Reed, eds., Risky Business. Canada’s Changing Science-Based Policy and Regulatory Regime (Toronto: University of Toronto Press, 2000) at 317.
[682] Jarvis, note 681 at 322.
[683] Mihlar, note 666 at 284.
[684] Dayna N. Scott, “Confronting Chronic Pollution: A Socio-Legal Analysis of Risk and Precaution” (2008), 46 Osgoode Hall L.J. 293 at 308.
[685] Jeremy D. Fraiberg and Michael J. Trebilcock, “Risk Regulation: Technocratic and Democratic Tools for Regulatory Reform” (1998), 43 McGill L.J. 835 at 857.
[686] Archibald, note 7 at 1-32.
[687] Breyer, note 62 at 57.
[688] Gobert, note 59 at 725.
[689] Richard Johnstone, “Putting the Regulated Back into Regulation” (1999), 26 J. L. & Soc’y 378 at 382.
[690] Breyer, note 62 at 57.
[691] Breyer, note 62 at 58.
[692] Daniel E. Lane, “Fisheries and Oceans Canada: Science and Conservation” in G. Bruce Doern and Ted Reed, eds., Risky Business. Canada’s Changing Science-Based Policy and Regulatory Regime (Toronto: University of Toronto Press, 2000) at 271.
[693] Michael J. Prince, “Aristotle’s Benchmarks: Institutions and Accountabilities of the Canadian Regulatory State” in G. Bruce Doern, Margaret M. Hill, Michael J. Prince, and Richard J. Shultz, eds., Changing the Rules. Canadian Regulatory Regimes and Institutions (Toronto: University of Toronto Press, 1999) at 229.
[694] Braithwaite, To Punish or Persuade: Enforcement of Coal Mining Safety, note 651 at 142.
[695] Braithwaite, To Punish or Persuade: Enforcement of Coal Mining Safety, note 651 at 142
[696] Ayres, note 15 at 53. See also Johnstone, note 689 at 379: “The challenge is to develop enforcement strategies that punish the worst offenders, while at the same time encouraging and helping employers to comply voluntarily”; Gunningham and Grabosky, note 650 at 396.
[697] Fiona Haines and David Gurney, “The Shadows of the Law: Contemporary Approaches to Regulation and the Problem of Regulatory Conflict” (2003), 25 Law & Pol’y 353 at 360.
[698] Ayres, note 15 at 35. Neil Gunningham, Legislating For Job Safety. A Critique of Occupational Health and Safety Legislation in Australia and a Programme for Reform (Melbourne: Australian Society of Labor Lawyers, 1983) at 16 comments that the “favoured tools” of inspectorates are advice, guidance and persuasion.
[699] While the regulatory enforcement pyramid is ordered in this way, this is not to suggest that the regulator will necessarily employ such a sequential approach. For example, in a particularly egregious case of willful or repeated non-compliance, the regulator may move directly to prosecution; conversely, where it is thought that a prosecution may prove ineffective due to limited court or prosecutorial resources, recourse to licence suspension or revocation may be pursued, particularly if there are other regulated parties available to provide comparable goods and services. Likewise, enforcement officers may prefer administrative monetary schemes as opposed to fines imposed by courts, so as to obviate the necessity of a time-consuming and lengthy prosecution.
[700] Archibald, note 7 at 14-8.
[701] Ayres, note 15 at 36.
[702] Ayres, note 15 at 4.
[703] Gunningham, Kagan and Thornton, note 650 at 99-102 use these terms to describe environmental management styles in order of progressiveness and commitment to regulatory compliance: “environmental laggards”, “reluctant compliers”, “committed compliers”, “environmental strategists” and “true believers”.
[704] Baar, note 660 at I-1.
[705] Archibald, note 7 at 14-8.
[706] John Braithwaite, “Meta Risk Management and Responsive Regulation for Tax System Integrity” (2003), 25 Law & Policy 1.
[707] Archibald, note 7 at 14-9.
[708] Braithwaite, note 706 at 14-15. See also United Kingdom Treasury, Reducing administrative burdens: effective inspection and enforcement, note 668 at 9 which recommends that risk assessment should be employed comprehensively by regulators, and that penalties should be based on risk assessment.
[709] Gunningham and Johnstone, note 650 at 116.
[710] Gunningham and Johnstone, note 650 at 116.
[711] Gunningham and Johnstone, note 650 at 116.
[712] Gunningham and Johnstone, note 650 at 124.
[713] Ayres, note 15 at 19.
[714] Ayres, note 15 at 19.
[715] Gunningham and Johnstone, note 650 at 123. See also Fiona Haines, Corporate Regulation. Beyond ‘Punish’ or ‘Persuade’ (Oxford: Clarendon Press, 1997) at 221.
[716] Richard Johnstone, From Fiction to Fact – Rethinking OHS Enforcement (Working Paper 11) (Australia: National Research Centre for OHS Regulation, 2003) at 4.
[717] Bridget M. Hutter, Regulation and Risk: Occupational Health and Safety on the Railways (Oxford: Oxford University Press, 2001) at 303.
[718] Johnstone, note 716 at 4. Of course, many, if not most regulated parties, may be committed to compliance on their own, without the necessity of the types of incentives mentioned by Johnstone.
[719] Hutter, note 717 at 301-302.
[720] Johnstone, note 716 at 4.
[721] Hutter, note 717 at 301-302. See also Johnstone, note 716 at 4.
[722] Sault Ste. Marie, note 33 at [C.C.C.] 357.
[723] Sault Ste. Marie, note 33 at [C.C.C.] 357. See further Howard, note 41.
[724] Coffee, note 42.
[725]Coffee, note 42.
[726] United Kingdom, Department for Business Enterprise & Regulatory Reform, Regulatory Justice: Sanctioning in a post-Hampton World (Consultation Document, May, 2006) [http://www.cabinetoffice.gov.uk/regulation/penalties] at 8.
[727] Verhulst, note 136 at 283.
[728] Environmental Protection Act (Ont.), note 259.
[729] Environmental Protection Act (Ont.), note 259, s.188.1(1).
[730] Public Health Act (B.C.), note 133.
[731] Public Health Act (B.C.), note 133, s.105.
[732] Public Health Act (B.C.), note 133, s.106.
[733] The issue as to whether it is preferable to set out sentencing purposes and principles in a statute of general application, such as the Provincial Offences Act of Ontario, note 3, as opposed to the Public Health Act (B.C.), note 133, which is not such a statute, is discussed in further detail in the following section.
[734] Verhulst, note 136 at 283.
[735] United Kingdom, Department for Business Enterprise & Regulatory Reform, note 726 at 8.
[736] United Kingdom, Department for Business Enterprise & Regulatory Reform, note 726 at 8.
[737] United Kingdom, Department for Business Enterprise & Regulatory Reform, note 726 at 8.
[738] United Kingdom, Department for Business Enterprise & Regulatory Reform, note 726 at 20.
[739] United Kingdom, Department for Business Enterprise & Regulatory Reform, note 726 at 20.
[740] United Kingdom, Department for Business Enterprise & Regulatory Reform, Regulatory Justice: Making Sanctions Effective (Final Report, November, 2006) [http://www.cabinetoffice.gov.uk/regulation/penalties] at 6.
[741] United Kingdom, Department for Business Enterprise & Regulatory Reform, note 740 at 6.
[742] United Kingdom, Department for Business Enterprise & Regulatory Reform, note 740 at 27.
[743] United Kingdom, Department for Business Enterprise & Regulatory Reform, note 740 at 27.
[744] United Kingdom, Department for Business Enterprise & Regulatory Reform, note 740 at 28.
[745] United Kingdom, Department for Business Enterprise & Regulatory Reform, note 740 at 28.
[746] United Kingdom, Department for Business Enterprise & Regulatory Reform, note 740 at 28. Macrory qualified the wording of four of the six penalties principles so that they now read: (i) a sanction should aim to change the behaviour of the offender (ii) a sanction should aim to eliminate any financial gain or benefit from non-compliance (iii) a sanction should be responsive and consider what is appropriate for the particular offender and the regulatory issue, which can include punishment and the public stigma that should be associated with a criminal conviction (iv) a sanction should be proportionate to the nature of the offence and the harm caused (v) a sanction should aim to restore the harm caused by regulatory non-compliance, where appropriate (vi) a sanction should aim to deter future non-compliance.
[747] Verhulst, note 136 at 283.
[748] Verhulst, note 136 at 283.
[749] Keith Hawkins, “’FATCATS’ and Prosecution in a Regulatory Agency: A Footnote on the Social Construction of Risk” in James F. Short Jr. and Lee Clarke, eds., Organizations, Uncertainties, and Risk (Boulder: Westview Press, 1992) at 296.
[750] Hawkins, note 749 at 296.
[751] Baar, note 660 at III-7.
[752] Hopkins, note 655 at 55.
[753] Verhulst, note 136 at 283.
[754] Gunningham and Grabosky, note 650 at 265. See too Julia Black and Robert Baldwin, “Really Responsive Regulation” (2008), 71 Mod. L. Rev. 59 at 73-76.
[755] Baar, note 660 at IV-20.
[756] Baar, note 660 at XII-4.
[757] Baar, note 660 at IV-21.
[758] Baar, note 660 at IV-21. In a subsequent study, it was noted that the term “positive compliance” denotes an approach to regulation which “relegates as much as possible to an administrative rather than a judicial process”: see Liora Salter, An Inventory of Positive Compliance Programs in the U.K., Australia, and U.S.A. (Vol. 2, Technical Report) (Ottawa: Department of Justice, 1988) at vii.
[759] R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30 (QL) [Sheppard]; R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903, [2002] S.C.J. No. 29 (QL) [Braich]; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, [2006] S.C.J. No. 17 (QL) [Gagnon].
[760] R. v. Goebel, 2003 ABQB 422, 338 A.R. 201, 17 Alta. L.R. (4th) 153, [2003] A.J. No. 591 at para.13 (QL) [Goebel].
[761] Julia Black, Rules and Regulators (Oxford: Clarendon Press, 1997) at 13.
[762] Verhulst, note 136 at 283.
[763] Verhulst, note 136 at 283.
[764] Verhulst, note 136 at 283; Ontario Law Commission, note 8 at 14-15.
[765] Julia Black, Martyn Hopper and Christa Band, “Making a success of Principles-based regulation” Law and Financial Markets Review (May 2007) at 191.
[766] United Kingdom Financial Services Authority, Principles-based regulation. Focusing on the outcomes that matter (London: The Financial Services Authority, 2007) at 6.
[767] Black note 765 at 191; United Kingdom Financial Services Authority, note 766 at 6. See too Elizabeth Bluff and Neil Gunningham, “Principle, Process, Performance or What? New Approaches to OHS Standards Setting” in Elizabeth Bluff, Neil Gunningham, and Richard Johnstone, eds., OHS Regulation for a Changing World of Work (Sydney: The Federation Press, 2004).
[768] Verhulst, note 136 at 284; Ontario Law Commission, note 8 at 15. For a discussion of how standards should be classified, see Gunningham and Johnstone, note 650, chapter 2, “From Compliance to Best Practice in OHS: The Roles of Specification, Performance, and Systems-Based Standards”.
[769] These particular examples are used by Verhulst, note 135 at 284. Similar illustrations are used by the Ontario Law Commission, note 8 at 15. Presumably the parties have entered into a negotiation to produce these results, or exchanged views as to the desirability of the particular regulatory strategy for the activity in question.
[770] Verhulst, note 136 at 284; Ontario Law Commission, note 8 at 15.
[771] Black, note 765 at 196.
[772] Verhulst, note 136 at 284; Ontario Law Commission, note 8 at 15.
[773] Verhulst, note 136 at 284; Ontario Law Commission, note 8 at 15.
[774] Verhulst, note 136 at 285.
[775] Hawkins, note 654 at 109.
[776] Ontario Law Commission, note 8 at 15.
[777] Verhulst, note 136 at 285.
[778] Hawkins, note 749 at 281.
[779] Black, note 754 at 80.
[780] Albert J. Reiss Jr., “The Institutionalization of Risk” in James F. Short Jr., and Lee Clarke, eds., Organizations, Uncertainties, and Risk (Boulder: Westview Press, 1992) at 307.
[781] Black, note 754.
[782] Black, note 754.
[783] Black, note 754 at 69.
[784] Black, note 754 at 80.
[785] Gunningham and Grabosky, note 650 at 403. The authors give the example of pollution taxes as being “static” and not “dynamic”, such that they cannot be effectively “tailored” to correspond to the behaviour of the party.
[786] Verhulst, note 136 at 286; Ontario Law Commission, note 8 at 15.
[787] Verhulst, note 136 at 286.
[788] Hawkins, note 654 at 109.
[789] Canadian Sentencing Commission, note 183 at 133.
[790] Criminal Code, note 9.
[791] Manson, note 162 at 468.
[792] Verhulst, note 136 at 286.
[793] Public Health Act (B.C.) note 133.
[794] Provincial Offences Act, note 3.
[795] Offence Act (B.C.), note 267.
[796] Provincial Offences Act, note 3.
[797] Public Health Act (B.C.), note 133.
[798] Canadian Environmental Protection Act, note 131.
[799] This practice is derived from Friskies Petcare (UK) Ltd., note 366.
[800] Verhulst, note 136 at 286.
[801] Ontario Law Commission, note 8 at 15.
[802] Public Health Act (B.C.), note 133.
[803] Public Health Act (B.C.), note 133, s.105.
[804] Public Health Act (B.C.), note 133, s.106.
[805] Public Health Act (B.C.), note 133, s.107.
[806] Public Health Act (B.C.), note 133, s.107(1)(c).
[807] Public Health Act (B.C.), note 133, s.107(1)(d).
[808] Public Health Act (B.C.), note 133, s.107(1)(f).
[809] Public Health Act (B.C.), note 133, s.107(1)(h).
[810] Public Health Act (B.C.), note 133, s.107(1)(i). These guidelines or standards may be made available to another person or class of persons, for a fee or free of charge, for up to three years from the date by which the guidelines or standards must be developed: s.107(1)(j).
[811] Public Health Act (B.C.), note 133, s.107(1)(k).
[812] Public Health Act (B.C.), note 133, s.107(1)(l).
[813] Public Health Act (B.C.), note 133, s.107(1)(m).
[814] Public Health Act (B.C.), note 133, s.108(1).
[815] Public Health Act (B.C.), note 133, s.108 (2).
[816] Public Health Act (B.C.), note 133, s.109.
[817] Public Health Act (B.C.), note 133, s.110.
[818] Public Health Act (B.C.), note 133.
[819] Criminal Code, note 9.
[820] See, for example, Manson, note 163 at 472; Jull, note 234 at 77-79; Ives, note 231 at 118; Doob, note 233 at 168; Ashworth, note 235 at 189; Roberts, note 198 at 223.
[821] Canadian Sentencing Commission, note 184 at 134.
[822] Archibald, note 7 at 12-38.
[823] See, for example, United Keno Hill Mines Ltd., note 292; Kenaston Drilling (Arctic) Ltd., note 292; Bata Industries Ltd., note 529; Law Reform Commission of Canada, note 48 at 40-44.
[824] Cotton Felts Ltd., note 25. The very recent decision of the England and Wales Court of Criminal Appeal in Thames Water Utilities Ltd., note 534, is also particularly illuminating in this regard. The Court, in setting out a new principled approach to sentencing for regulatory offences, identified punishment, deterrence and reparation as being “particularly important purposes” of sentence in such cases, and stated that that there was “a clear policy need” to encourage the making of voluntary reparation by offenders, whether by consenting to compensation orders, or making or pledging voluntary payments: see paras. 39(vi), 53.
[825] Sherrin, note 79 at 2.
[826] Verhulst, note 136 at 287.
[827] Canadian Sentencing Commission, note 184 at134.
[828] Imperial Oil Canada, note 128 at [QL] para. 24.
[829] Canadian Sentencing Commission, note 184 at 390.
[830] Law Reform Commission of Canada, Restitution and compensation: Fines (Working Paper 5) (Ottawa: Government of Canada, 1974) at 7-8. See also R. v. Zelensky, [1978] 2 S.C.R. 940 at 952, per Laskin C.J., [1978] S.C.J. No. 48 (QL) [Zelensky].
[831] United Kingdom, Department for Business Enterprise & Regulatory Reform, note 740 at 31.
[832] See, for example, Braithwaite, Restorative Justice & Responsive Regulation, note 651.
[833] Criminal Code, note 9, s.718(e), (f).
[834] See Campbell, note 122; Hughes, note 122; Strickland, note 122; Libman, note 39 at 11.2(x).
[835] Verhulst, note 136 at 289.
[836] United Kingdom, Department for Business Enterprise & Regulatory Reform, note 740 at 29.
[837] Cotton Felts Ltd., note 25.
[838] United Kingdom, Department for Business Enterprise & Regulatory Reform, note 740 at 29.
[839] Verhulst, note 136 at 289.
[840] See Ellen Baar, Positive Compliance Programs: Their Potential as Instruments for Regulatory Reform (Vol. 1)[ Working Document] (Ottawa: Department of Justice, 1991) at 76; Archibald, note 7 at 12-12.
[841] Archibald, note 7 at 12-1.
[842] Archibald, note 7 at 12-1.
[843] United Kingdom, Department for Business Enterprise & Regulatory Reform, note 740 at 20.
[844] See, for example, Campbell, note 122; Hughes, note 122; Strickland, note 122.
[845] Ruby, note 237 at 427.
[846] Provincial Offences Act, note 3, s.72(1).
[847] Provincial Offences Act, note 3, s.731(1).
[848] Provincial Offences Act, note 3, s.72(1). These considerations, which are also set out in s.731(1) of the Criminal Code, note 9, “reflect the origins of probation as relief from the constraints of incarceration justified on the basis of the offender’s age or character or because of the minor nature of the offence”: Canadian Sentencing Commission, note 184 at 351.
[849] Under the Provincial Offences Act, note 3, s.75(d), the offence of breach of probation is punishable by a fine of up to $1,000, or imprisonment for a term of not more than 30 days, or to both. Again, it is noteworthy to contrast the more robust provisions respecting probation breaches under the Criminal Code, note 9: s.733.1(1) allows the prosecutor to elect to proceed by indictment, in which case the offender may be imprisoned for up to two years, or by way of summary conviction, which makes the defendant liable to imprisonment for up to 18 months, or a fine of up to $2,000, or both. The usual maximum period of summary conviction imprisonment is six months: s.787(1).
[850] Verhulst, note 136 at 289.
[851] Archibald, note 7 at 12-1.
[852] Ruby, note 237 at 427.
[853] Bill C-45, note 54.
[854] The definition of “organization” in s.2 of the Criminal Code, note 9, includes a public body, body corporate, society, company, firm, partnership, trade union or municipality. It also encompasses “an association of persons” that is created for a common purpose, has an organizational structure, and holds itself out to the public as an association of persons.
[855] Criminal Code, note 9, s.732.1(3.1).
[856] Criminal Code, note 9, s.732.1(3.1)(b). Prior to making a probation order containing this term, the court is directed under s.732.1(3.2) to consider whether “it would be more appropriate for another regulatory body to supervise the development or implementation of the policies, standards and procedures” referred to in s.732.1(3.1)(b).
[857] Criminal Code, note 9, s.732.1(3.1)(c).
[858] Criminal Code, note 9, s.732.1(3.1)(d).
[859] Criminal Code, note 9, s.732.1(3.1)(f). To date, no such probation order has been imposed by a court. However, in one of the few cases under the legislation, Transpavé Inc., note 55, where an employee was crushed to death by a concrete press, the defendant company pled guilty to one count of criminal negligence causing death and was fined $100,000. Although probation was not ordered, it should be noted that the defendant had spent approximately $500,000 on improvements to reduce the likelihood of a similar incident occurring in the future. It would have been open to the court, had the defendant not taken such measures, to craft terms in a probation order to the same effect so as to reduce the likelihood of the organization committing a subsequent offence: see Criminal Code, note 9, s.732.1(3.1)(b), (g).
[860] Archibald, note 7 at 12-2.
[861] Archibald, note 7 at 12-2.
[862] Law Reform Commission of Canada, note 48.
[863] Law Reform Commission of Canada, note 48 at 12.
[864] John C. Coffee Jr., “’No Soul To Damn: No Body To Kick’: An Unscandalized Inquiry Into The Problem of Corporate Punishment” (1981), 79 Mich. L. Rev. 386.
[865] Criminal Code, note 9, s.718.21.
[866] Archibald, note 7 at 12-5.
[867] Criminal Code, note 9, s.718.21(h).
[868] Criminal Code, note 9, s.718.21(i).
[869] Criminal Code, note 9, s.718.21(j).
[870] General Scrap Iron & Metals Ltd., note 432.
[871] General Scrap Iron & Metals Ltd., note 432 at [QL] paras. 27-28.
[872] R. v. Potocan Mining Co. (1996), 183 N.B.R. (2d) 54, [1996] N.B.J. No. 567 at para 29 (QL) (Prov.Ct.). [Potocan Mining Co.]
[873] R. v. Panarctic Oils Ltd., [1983] N.W.T.R. 143, [1983] N.W.T.J. No. 17 (QL) [Panarctic Oils Ltd.].
[874] Panarctic Oils Ltd., note 873 at [QL] para. 47.
[875] See, for example, Shamrock Chemicals Ltd., note 545.
[876] Woods v. Ontario (Minister of Natural Resources), [2007] O.J. No. 1208 at para. 7 (QL) (S.C.J.) [Woods].
[877] Ontario (Minister of the Environment) v. Quinte-Eco Consultants Inc., 2008 ONCA 630, [2008] O.J. No. 3533 (QL) [Quinte-Eco Consultants Inc.].
[878] Provincial Offences Act, note 3, s.72(3)(c).
[879] Quinte-Eco Consultants Inc., note 877 at [QL] para. 5.
[880] Bata Industries Ltd., note 529.
[881] Archibald, note 7 at 12-2.
[882] Verhulst, note 136 at 291.
[883] Verhulst, note 136 at 291.
[884] Archibald, note 7 at 12-12.1.
[885] Cotton Felts Ltd., note 25 at [QL] para. 22.
[886] United Kingdom, Department for Business Enterprise & Regulatory Reform, note 740 at 31.
[887] Canadian Sentencing Commission, note 184 at 135.
[888] United Kingdom, Department for Business Enterprise & Regulatory Reform, note 726 at 8.
[889] United Kingdom, Department for Business Enterprise & Regulatory Reform, note 740 at 20.
[890] Verhulst, note 136 at 292-293.
[891] Public Health Act (B.C.), note 133.
[892] Public Health Act (B.C.), note 133, s.106(4)(a).
[893] Public Health Act (B.C.), note 133, s.106(4)(b).
[894] Verhulst, note 136 at 293.
[895] Verhulst, note 136 at, 292.
[896] Virk , note 100.
[897] Virk, note 100 at para. 56.
[898] Sault Ste. Marie, note 33 at [C.C.C.] 373.
[899] Swaigen, note 37 at xxxvi.
[900] Archibald, note 7 at 12-15.
[901] Criminal Code, note 9, ss.22.1, 22.2.
[902] Canadian Sentencing Commission, note 184 at 142.
[903] C.A.M., note 279.
[904] C.A.M., note 278 at [QL] para. 81.
[905] Verhulst, note 136 at 292.
[906] Archibald, note 7 at 12-14.
[907] Inco Ltd., note 431.
[908] Serfaty, note 494.
[909] Siapas,[note 544.
[910] Wholesale Travel Group Inc., note 11.
[911] Wholesale Travel Group Inc., note 11 at [QL] para. 219.
[912] Archibald, note 7 at 12-18.1.
[913] Archibald, note 7 at 12-18.1.
[914] Verhulst, note 136 at 293.
[915] Public Health Act (B.C.), note 133.
[916] Canadian Sentencing Commission, note 184 at 139.
[917] Verhulst, note 136 at 294.
[918] For example, an individual who is convicted of an offence involving cruelty or mistreatment of an animal may receive a sentence that incorporates incapacitation by prohibiting the person from having custody of animals for a period of time.
[919] Archibald, note 7 at 12-36-12-37.
[920] Ayres, note 15 at 35.
[921] Archibald, note 7 at 12-38; J. Scholz, “Enforcement Policy and Corporate Misconduct: The Changing Perspective of Deterrence Theory” (1997). 60 Law & Contemp. Probs 253 at 254.
[922] Offence Act (B.C.), note 267.
[923] Provincial Offences Act, note 3.
[924] Criminal Code, note 9.
[925] Criminal Code, note 9, s.718.
[926] Ruth Sullivan, Construction of Statutes, 5th ed. (Markham: LexisNexis Canada Inc., 2008) at 325. See also Ruth Sullivan, Statutory Interpretation, 2nd ed. (Toronto: Irwin Law Inc., 2007) at 303.
[927] Sullivan, Construction of Statutes, 5th ed., note 926 at 412; Sullivan, Statutory Interpretation, 2nd ed., note 926 at 149-151.
[928] Provincial Offences Act, note 3.
[929] Criminal Code, note 9, s.732(3.1).
[930] Regulatory Modernization Act (Ont.), note 321.
[931] Regulatory Modernization Act (Ont.), note 321, s.15(3).
[932] Regulatory Modernization Act (Ont.), note 321, s.15(4)(a), (b).
[933] For example, s.718.01 of the Criminal Code, note 9, provides that where a sentence is being imposed for an offence which involves the abuse of a person under the age of 18 years, the court shall “give primary consideration to the objectives of denunciation and deterrence of such conduct.”
[934] An illustration of this is s.10 of the Controlled Drugs and Substances Act, S.C. 1996, c.19 [Controlled Drugs and Substances Act], which provides its own purposes of sentencing “without restricting the generality of the Criminal Code.”
[935] Serfaty, note 494.
[936] Competition Act, note 50.
[937] Criminal Code, note 9.
[938] Bill C-13, An Act to amend the Criminal Code (Capital Markets Fraud and Evidence-Gathering), S.C. 2004, c.3 [Bill C-13].
[939] Criminal Code, note 9, s.380.1(1)(a).
[940] Criminal Code, note 9, s.380.1(1)(b).
[941] Serfaty, note 494 at [QL] para. 37.
[942] Criminal Code, note 9, s.380.1(1)(c).
[943] Criminal Code, note 9, s.380.1(1)(d).
[944] Serfaty, note 494 at [QL] para. 37.
[945] Criminal Code, note 9, s.380.1(1).
[946] Criminal Code, note 9, s.380.1(2).
[947] Provincial Offences Act, note 3, s.12(1).
[948] There is additionally Part II of the Provincial Offences Act, note 3, which governs the procedure for parking infractions. Given that such offences cannot be charged under Part I, they are not mentioned further.
[949] Provincial Offences Act, note 3, s.9(1).
[950] Provincial Offences Act, note 3, s.9.1(1).
[951] Provincial Offences Act, note 3, s.11(1).
[952] Provincial Offences Act, note 3, s.72(1)(a).
[953] Provincial Offences Act, note 3, s.1(1) defines a set fine as “the amount of fine set by the Chief Justice of the Ontario Court of Justice for an offence for the purpose of proceedings commenced under Part I or II.”
[954] Provincial Offences Act, note 3, s.2(1).
[955] Highway Traffic Act (Ont.), note 65, s.130.
[956] Highway Traffic Act (Ont.), note 65, s.128.
[957] Highway Traffic Act (Ont.), note 65, s.53(1).
[958] Cotton Felts Ltd., note 25.
[959] Good Government Act, 2009, S.O. 2009, c.33, s.1(18), effective 15 December 2009 [Good Government Act (Ont.)]. This amendment to s.12(1) of the Provincial Offences Act, note 3, increases the maximum fine amount for Part I offences from $500 to $1,000.
[960] Opening of the Courts, 14 September 2009, Speech of Chief Justice Annemarie Bonkalo.
[961] Verhulst, note 136 at 295.
[962] Verhulst, note 136 at 295.
[963] Provincial Offences Act, note 3.
[964] The Provincial Offences Act, note 3, as enacted by S.O. 1979, c.4, was given third reading on 27 March 1979, after having originally been introduced in the legislature in April, 1978. It was reintroduced for first reading on 6 March 1979. In order to allow for the design and implementation of the new court systems and procedures under the Act, there was a delay until 31 March 1980 before the legislation went into effect. See W. Douglas Drinkwater and J. Douglas Ewart, Ontario Provincial Offences Procedure (Toronto: The Carswell Company Limited, 1980) at vi-vii.
[965] Law Reform Commission of Canada, note 48 at 7.
[966] Archibald, note 7 at 12-7-12-10.
[967] Verhulst, note 136 at 286.
[968] Ontario Law Commission, note 8 at 16.
[969] See Richard Macrory, Regulation, Enforcement and Governance in Environmental Law (Oxford: Hart Publishing, 2010) at 26 who observes: “When one looks at the current system of regulatory sanctions in this country, be it environmental, trading standards or health and safety, it is remarkable how narrow the range of sanctions are.”
[970] Provincial Offences Act, note 3, s.2(1).
[971] Criminal Code, note 9.
[972] Provincial Offences Act, note 3, s.61 provides that except where otherwise provided by law, every person who is convicted of an offence is liable to a fine of not more than $5,000. This “residual penalty” therefore does not provide for the use of imprisonment. When the Act was first enacted, the fine ceiling was set at $2,000.
[973] Sheilagh Stewart, Stewart on Provincial Offences Procedure in Ontario, 2nd ed. (Salt Spring Island: Earlscourt Legal Press, 2005) at 1.
[974] Provincial Offences Act, note 3, s.42.
[975] Provincial Offences Act, note 3, s.86.
[976] Provincial Offences Act, note 3, s.91.
[977] Provincial Offences Act, note 3, s.99.
[978] Drinkwater, note 963 at 212.
[979] Cotton Felts Ltd., note 25 at [QL] para. 19; Law Reform Commission of Canada, note 48 at 5.
[980] Provincial Offences Act, note 3.
[981] Offence Act (B.C.), note 267.
[982] Criminal Code, note 9.
[983] See, for example, the Nova Scotia Summary Proceedings Act, R.S. N.S. 1989, c.450 [Summary Proceedings Act (N.S.)]
[984] Bill C-41, note 201.
[985] Bill C-45, note 54.
[986] Stewart, note 973 at 239.
[987] Stewart, note 973 at 240. The one exception is s.97(1)(b) of the Provincial Offences Act, note 3, which permits the court to grant an absolute discharge to young persons. However, this does not permit a power to grant absolute or conditional charges to be implied for adult offenders: see R. v. Sztuke (1993), 16 O.R. (4th) 559, [1993] O.J. No. 3038 (QL) (C.A.) [Sztuke].
[988] Provincial Offences Act, note 3, s.60.1(1).
[989] Provincial Offences Act, note 3, s.60.1(4).
[990] Provincial Offences Act, note 3, s.66(1).
[991] Provincial Offences Act, note 3, s.66(2).
[992] Provincial Offences Act, note 3, s.67. However, the fine option program contemplated by this section is not in force. As a result, there is no such program in operation in the province which allows for the payment of fines by means of credit for work.
[993] Provincial Offences Act, note 3, s.68.
[994] Provincial Offences Act, note 3, s.69.
[995] Provincial Offences Act, note 3, s.72(4).
[996] Provincial Offences Act, note 3, s.75.
[997] Highway Traffic Act (Ont.), note 65, s.130.
[998] The Road Safety Act, S.O. 2009, c.5 [Road Safety Act (Ont.)] has raised the minimum penalty to $400 and increased the maximum amount to $2,000, but leaves unchanged the 6 months maximum period of imprisonment.
[999] Provincial Offences Act, note 3, s.72(1)(a).
[1000] Provincial Offences Act, note 3, s.72(1)(c).
[1001] Provincial Offences Act, note 3.
[1002] Criminal Code, note 9.
[1003] The Criminal Code, note 9, definition of “victim” includes “a person to whom harm was done or who suffered physical or emotional loss as a result of the commission of the offence”: s.722(4)(a). Where no such person is capable of making a victim impact statement due to, for example, death or illness, the victim’s spouse, common-law partner, relative or anyone responsible for the care or support of that person, or any dependent of that person, may provide a victim impact statement: s.722(4)(b).
[1004] Criminal Code, note 9, s.722(2).
[1005] Criminal Code, note 9, s.722(1)
[1006] Criminal Code, note 9, s.722(2.1).
[1007] Criminal Code, note 9, s.722.2(1).
[1008] Criminal Code, note 9, s.722.2(2).
[1009] Criminal Code, note 9, s.718(e).
[1010] Ruby, note 237 at 633. See further Joan Barrett, Balancing Charter Interests. Victims’ Rights and Third Party Remedies (Toronto: Thomson Canada Limited, 2001) at 4-22-4-23.
[1011] R. v. Gabriel (1999), 98 O.T.C. 193, [1999] O.J. No. 2579 at para. 19 (QL) (S.C.) [Gabriel].
[1012] R. v. Neely, [2003] O.J. No. 1977 at para. 191 (QL) (S.C.) [Neely].
[1013] R. v. Taylor (2004), 189 O.A.C. 388, [2004] O.J. No. 3439 at para. 42 (QL) [Taylor].
[1014] See, for example, R. v. Hutchings, 2004 ONCJ 200, [2004] O.J. No. 3950 (QL) [Hutchings]; R. v. Trigiani, [2000] O.J. No. 5872 at para 16 (QL) (C.J.), aff’d (2001), 18 M.V.R. (4th) 222, [2001] O.J. No. 6111 (QL) (S.C.J.) [Trigiani] ; R. v. Messercola, 2005 ONCJ 6, [2005] O.J. No. 126 (QL) [Messercola]; Di Franco, note 429. For a recent case where there were objections to the admissibility of portions of the victim impact statements, see R. v. Long Lake Forest Products Inc., 2009 ONCJ 241, [2009] O.J. No. 2193 (QL). [Long Lake Forest Products Inc.]
[1015] R. v. Robinson, 2008 BCSC 1195, [2008] B.C.J. No. 1691 (QL) [Robinson].
[1016] Criminal Code, note 9, s.335.
[1017] Highway Traffic Act (Ont.), note 65, s.128.
[1018] Criminal Code, note 9, s.249.
[1019] Highway Traffic Act (Ont.), note 65, s. 130.
[1020] Provincial Offences Act, note 3.
[1021] Provincial Offences Act, note 3, s.72(4).
[1022] Criminal Code, note 9, s.732.2(2)(b).
[1023] Criminal Code, note 9, s.731(1)(a).
[1024] Criminal Code, note 9, s.731(1)(b).
[1025] Criminal Code, note 9, s.743.1(1)(b).
[1026] Provincial Offences Act, note 3, s.72(1)(a). The preclusion of probation for proceedings commenced by certificate of offence under Part I has been affirmed by the courts in Ontario: see, for example, R. v. Nickel City Transport (Sudbury) Ltd. (1993), 14 O.R. (3d) 115, 63 O.A.C. 289 [Nickel City Transport (Sudbury) Ltd.], and more recently Ontario (Ministry of Labour) v. Creations by Helen Inc., 2007 ONCJ 713, [2007] O.J. No. 5560 (QL) [Creations by Helen Inc.].
[1027] Provincial Offences Act, note 3, s.72(7).
[1028] The Occupational Health and Safety Act (Ont.), note 55, s.2, provides that despite what is stated within any general or special legislation, such as the Provincial Offences Act, the provisions of the Occupational Health and Safety Act are to prevail. Given that the legislation contains penalties which are either fines or imprisonment, it is arguable that a Provincial Offences Act probation order may not be imposed: see Stewart, note 973 at 272-273.
[1029] Criminal Code, note 9, s.732.1(2)(a).
[1030] Criminal Code, note 9, s.732.1(2)(b).
[1031] Criminal Code, note 9, s.732.1(2)(c).
[1032] Provincial Offences Act, note 3, s.72(2)(a).
[1033] Provincial Offences Act, note 3, s.72(2)(b).
[1034] Provincial Offences Act, note 3, s.72(2)(c).
[1035] Drinkwater, note 964 at 245; Stewart, note 973 at 273.
[1036] Drinkwater, note 964 at 245.
[1037] Criminal Code, note 9,s.732.1(3).
[1038] Criminal Code, note 9, s.732.1(3.1).
[1039] Criminal Code, note 9, s.732.1(3)(a).
[1040] Criminal Code, note 9, s.732.1(3)(b).
[1041] Criminal Code, note 9, s.732.1(3)(d).
[1042] Criminal Code, note 9, s.732.1(3)(e).
[1043] Criminal Code, note 9, s.732.1(3)(f).
[1044] Criminal Code, note 9, s.732.1(3)h).
[1045] Criminal Code, note 9, s.732.1(3.1).
[1046] Provincial Offences Act, note 3, s.72(3)(a).
[1047] Drinkwater, note 964 at 245 explains that a reason for this limitation is that otherwise there would be “a significant potential for many persons to see provincial offence proceedings as a cheap and expeditious way to recover money for damages, particularly damages to automobiles.”
[1048] See, for example, the New Brunswick Provincial Offences Procedure Act, S.N.B. 1987, c.P-22.1, s.74(3)(a). [Provincial Offences Procedure Act (N.B.)] The Offence Act (B.C.), note 267, s.89(3)(a), contains a similar restitution and reparation condition, although the legislation provides for the entering into of a recognizance when sentence is suspended, as opposed to probation. The effect, however, is the same.
[1049] Provincial Offences Act, note 3, s.72(3)(b).
[1050] Drinkwater, note 964 at 245.
[1051] See, for example, the Provincial Offences Procedure Act (N.B.), note 1048, s.74(3)(b).
[1052] Provincial Offences Act, note 3, s.72(3)(c).
[1053] Drinkwater, note 964 at 246 provides the example of a defendant, who is convicted of a liquor offence, could not be prohibited from driving an automobile unless the conduct prohibited actually contributed to the commission of the offence for which the defendant was found guilty.
[1054] Provincial Offences Act, note 3, s.72(3)(d).
[1055] Drinkwater, note 964 at 246.
[1056] Provincial Offences Act, note 3, s.72(4).
[1057] Provincial Offences Act, note 3, s.75(d).
[1058] Provincial Offences Act, note 3, s.75(e).
[1059] Ruby, note 237 at 441.
[1060] Verhulst, note 136 at 286.
[1061] Archibald, note 7 at 12-2.
[1062] Archibald, note 7 at 13-13.
[1063] Criminal Code, note 9, s.732.1(3.1).
[1064] Provincial Offences Act, note 3.
[1065] Drinkwater, note 964 at 233.
[1066] See Canadian Sentencing Commission, note 184, at 354-355 for a discussion of the use of fine option programs under the Criminal Code.
[1067] For example, a defendant convicted of a provincial offence may request an extension of time for payment of the fine under s.66(2) of the Provincial Offences Act, note 3. Where the fine is a minimum fine, the court also has a limited jurisdiction to grant relief if there are “exceptional circumstances” to do so, such that payment of the minimum fine “would be unduly oppressive or otherwise not in the interests of justice”: s.59(2).
[1068] Fine Option Program, R.R.O. 1990, Reg. 948 [Fine Option Program (Ont.)].
[1069] O.Reg. 925/93. See further Stewart, note 973 at 293.
[1070] Stewart, note 973 at 293. The other jurisdictions without fine option programs are British Columbia, Nunavut and Newfoundland and Labrador.
[1071] R. v. Wu (2001), 152 O.A.C. 300, [2001] O.J. No. 4885 at para. 42 (QL) [Wu].
[1072] R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530, [2003] S.C.J. No. 78 at para. 54 (QL) [Wu].
[1073] Excise Act, R.S.C. 1985, c.E-14 [Excise Act].
[1074] Wu, note 1072 at [QL] para. 52. The trial judge imposed a conditional sentence of 75 days in default of payment of the minimum fine. This sentence was upheld by the Ontario Court of Appeal, in a split decision, but the Supreme Court of Canada reversed this decision, holding 8:1 that it was an error to impose a conditional sentence for default of payment of the fine.
[1075] Criminal Code, note 9, s.717.
[1076] Youth Criminal Justice Act, S.C. 2002, c.1, s.10. [Youth Criminal Justice Act]
[1077] Provincial Offences Act, note 3.
[1078] Canadian Environmental Protection Act, note 131.
[1079] Canadian Environmental Protection Act, note 131, s.295.
[1080] Ruby, note 237 at 134-135.
[1081] Criminal Code, note 9, s.717(1).
[1082] Criminal Code, note 9, s.717(1)(b).
[1083] Ruby, note 237 at 136.
[1084] Criminal Code, note 9, s.717(1)(c).
[1085] Criminal Code, note 9, s.717(2)(a).
[1086] Criminal Code, note 9, s.717(2)(b).
[1087] Ruby, note 237 at 135-136.
[1088] Canadian Environmental Protection Act, note 131.
[1089] Canadian Environmental Protection Act, note 131, s.296.
[1090] Species at Risk Act, S.C. 2002, c.29 [Species at Risk Act].
[1091] Species at Risk Act, note 1090, s.110.
[1092] Species at Risk Act, note 1090, s.109(2).
[1093] Public Health Act (B.C.), note 133, s.107.
[1094] Public Health Act (B.C.), note 133, s.107(1)(c).
[1095] Public Health Act (B.C.), note 133, s.107(1)(d). Note there is no maximum period of community service set out, unlike the ceiling of 240 hours in the Criminal Code probationary provisions pursuant to s.732.1(3)(f).
[1096] Public Health Act (B.C.), note 133, s.107(1)(e).
[1097] Public Health Act (B.C.), note 133, s.107(1)(f).
[1098] Public Health Act (B.C.), note 133, s.107(1)(g).
[1099] Public Health Act (B.C.), note 133, s.107(1)(h). This term has similarities with the optional probation condition for organizations: see Criminal Code, s.732.1(3.1)(e) imposing a like obligation on the organization’s senior officer.
[1100] Public Health Act (B.C.), note 133, s.107(1)(i). This provision is not unlike Criminal Code, s.732(3.1)(b) respecting the organization’s obligation to establish policies, standards and procedures for this same purpose.
[1101] Public Health Act (B.C.), note 133, s.107(1)(j).
[1102] Public Health Act (B.C.), note 133, s.107(1)(k). Such a term resembles Criminal Code, s.732(3.1)(f) respecting the organization’s obligation to inform the public of such information.
[1103] Public Health Act (B.C.), note 133, s.107(1)(l).
[1104] Public Health Act (B.C.), note 133, s.107(1).
[1105] Provincial Offences Act, note 3.
[1106] See Campbell, note 122; Hughes note 122; Strickland, note 122; Libman, note 39 at 11.2(x).
[1107] S.C. 1991, c.1, s.24, amending Fisheries Act, note 121.
[1108] Public Health Act (B.C.), note 133, s.107.
[1109] R. v. Silver Hart Mines Ltd., [1991] N.W.T.J. No. 160 (QL) [Silver Hart Mines Ltd.].
[1110] R. v. Amoco Canada Petroleum Co. (1993), 13 C.E.L.R. (N.S.) 317 (Alta.Prov.Ct.). [Amoco Canada Petroleum Co.]
[1111] Fletcher v. Kingston (City), [1999] O.J. No. 5705 (QL) (Prov.Div.) [Fletcher].
[1112] Corner Brook Pulp & Paper Ltd., note 459.
[1113] Provincial Offences Act, note 3.
[1114] Canadian Sentencing Commission, note 184 at 348.
[1115] Canadian Sentencing Commission, note 184 at 352.
[1116] Canadian Sentencing Commission, note 184 at, 353.
[1117] Law Reform Commission of Canada, note 830 at 375.
[1118] Criminal Code, note 9.
[1119] Criminal Code, note 9, s.732.1(3)(h). See R. v. Scherer (1984), 5 O.A.C. 297, [1984] O.J. No. 156 (QL) [Scherer] holding that the sentencing court has the authority to make “restitution or reparation” a term of probation where it is satisfied that the term can be reasonably performed during the period of probation. See further Ruby, note 237 at 645.
[1120] Criminal Code, note 9, s.738(1).
[1121] Criminal Code, note 9, s.741(1).
[1122] Barrett, note 1010 at 4-77.
[1123] Criminal Code, note 9, s.718(1)(e).
[1124] Criminal Code, note 9, s.718(1)(f).
[1125] Provincial Offences Act, note 3.
[1126] See, for example, Alberta’s Provincial Offences Procedure Act, R.S.A. 2000, c.P-34, s.8(1) [Provincial Offences Procedure Act (Alta.)], which authorizes an award of up to $2,000 as compensation for the victim’s loss. If the amount awarded is not paid within the time ordered by the justice, the victim may file the order and have it entered as a judgment in the Court of Queen’s bench where it is enforceable in the same manner as if it were a judgment rendered against the defendant in the Court of Queen’s bench in civil proceedings: s.8(2).
[1127] Thames Water Utilities Ltd., note 534.
[1128] Thames Water Utilities Ltd., note 534 at para. 53.
[1129] Provincial Offences Act, note 3, s.72(3)(b).
[1130] Provincial Offences Procedure Act (Alta.), note 1127, s.8(2).
[1131] Criminal Code, note 9.
[1132] Criminal Code, note 9, s.490.1.
[1133] Controlled Drugs and Substances Act, note 934, s.16(1).
[1134] Criminal Code, note 9, s.462.31(1).
[1135] Ruby, note 237 at 663.
[1136] R. v. Lavigne, 2006 SCC 10, [2006] 1 S.C.R. 392, [2006] S.C.J. No. 10 at para. 9 (QL) [Lavigne].
[1137] Archibald, note 7 at 12-13.
[1138] Fisheries Act, note 121, s.72
[1139] Wildlife Act, C.C.S.M. c.W130 [Wildlife Act (Man.)].
[1140] Turner v. Manitoba, 2001 MBCA 207, 160 Man. R. (2d) 256, [2001] M.J. No. 562 (QL) [Turner].
[1141] R. v. Perry, [2003] N.J. No. 27 (QL) (Prov.Ct.) [Perry].
[1142] R. v. Oates (2002), 214 Nfld. & P.E.I.R. 166, [2002] N.J. No. 165 at para 12 (QL) (S.C.), aff’d 2004 NLCA 6, 233 Nfld. & P.E.I.R. 138, [2004] N.J. No. 29 (QL) [Oates].
[1143] Provincial Offences Act, note 3.
[1144] Drinkwater, note 964 at 67.
[1145] Stewart, note 973 at 269.
[1146] For example, the Fish and Wildlife Conservation Act, 1997, S.O. 1997, c.41 [Fish and Wildlife Conservation Act (Ont.)], provides for forfeiture in certain circumstances. See further Stewart, note 973 at 262.
[1147] Bill C-41, note 200.
[1148] Ruby, note 237 at 533.
[1149] Proulx, note 225; R. v. Gladue, note 223.
[1150] Criminal Code, note 9, ss.742-742 7.
[1151] Criminal Code, note 9, s.742.1.
[1152] Criminal Code, note 9, s.742.3.
[1153] Criminal Code, note 9, s.742.6
[1154] See, for example, Virk, note 100. For a discussion of other cases to this effect, see Libman, note 39 at 11.2(t)
[1155] Wu, note 1072.
[1156] See, for example, R. v. Mitchell, 2007 ONCJ 218, [2007] O.J. No.2016 (QL) [Mitchell]; R. v. Wagenaar, 2006 ONCJ 551, [2006] O.J. No. 5531 (QL) [Wagenaar].
[1157] Criminal Code, note 9, s.742.3(2)(d).
[1158] See, for example, R. v. Stroshein, 2001 SKCA 20, 203 Sask. R. 183, [2001] S.J. No. 90 (QL) [Stroshein].
[1159] Criminal Code, note 9, s.380.
[1160] Securities Act (Ont.), note 56, s.122.
[1161] Criminal Code, note 9, s.249.2.
[1162] Highway Traffic Act (Ont.), note 65, s.172.
[1163] R. v. Scott Steel Ltd., 2003 BCSC 271, [2003] B.C.J. No. 396 (QL), leave to appeal refused, 2004 BCCA 2, [2004] B.C.J. No. 2 (QL) [Scott Steel Ltd.].
[1164] Archibald, note 7 at 9-2.
[1165] Provincial Offences Act, note 3, s.2(1).
[1166] Law Reform Commission of Canada, note 48 at 72.
[1167] Provincial Offences Act, note 3.
[1168] Charter of Rights, note 85.
[1169] Criminal Code, note 9.
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