A. Purposes and Principles of Sentencing for Regulatory Offences
Regulatory offences are different, conceptually, than criminal offences. That is, regulatory offences are different in that moral blameworthiness is not required, as is the case for true crimes. The essence of most regulatory offences is negligence, leaving it open to the defendant, on the basis of the doctrine of strict liability, to establish due diligence on a balance of probability, and exonerate himself/herself. An absence of fault will suffice for regulatory offences of absolute liability; on the other hand, some regulatory offences, like criminal offences, do require a mens rea element. These factors, which are unique to regulatory offences, limit the utility of sentencing considerations with respect to criminal offences.
When it comes time for punishment, then, how is it that a court should determine what purposes and principles of sentencing should apply to this eclectic mix of regulatory offences. Does sentencing for regulatory offences constitute a veritable barrier to effective enforcement, as some have suggested, or does the difference between regulatory offences and criminal offences merit a special approach, as others have posited. It will be to these issues that this section is devoted. In the following section, a matrix of regulatory offences cases in the areas of workplace safety, consumer protection and environmental regulation will be examined, in order to see if the general observations made here respecting sentencing practices and patterns are borne out by reference to the jurisprudence in Canada.
2. Determining Sentencing Purposes and Principles for Regulatory Offences in Canada
The problem which currently confronts sentencers in regulatory offences cases is an intractable one. It arises, in part, from the pervasive nature of regulatory offences. Unlike the judge imposing sentence for a criminal offence, who need look no further than the Criminal Code for both a compilation of offences, and statement of sentencing purposes and principles, the justice of the peace or judge presiding over a regulatory offences case faces a much more diverse and unwieldy situation. As noted in Part I, in a study on strict liability conducted for the Law Reform Commission of Canada in 1974, it was estimated that there were approximately 20,000 regulatory offences in each province plus an additional 20,000 federal offences. This did not take into account municipal infractions, such as by-law offences. By 1983, the Department of Justice estimated that there were 97,000 federal regulatory offences. Given these figures, there is no reason to believe that the number of regulatory offences at all levels of government has not continued to increase.
Some of these regulatory offences statutes do include, as Archibald et al observe, a statement of sentencing considerations that are “tailor-made to a specific area.” An illustration of this is found in environmental laws, such as the Canadian Environmental Protection Act, 1999, where the “polluter pays” principle is set out. According to this principle, polluters are assigned the responsibility of remedying contamination for which they are responsible, and bear the direct and immediate costs of pollution. In fact, this principle has become “firmly entrenched” in environmental law throughout Canada, as it is found in almost all federal and provincial environmental legislation.
But where there are no such sentencing provisions set out, where is the court to turn for guidance? In the case of federal regulatory offences which constitute “contraventions” within the meaning of the federal Contraventions Act the court is to be guided, in fact, by provincial offences legislation, to the extent that it contains any sentencing provisions; in the case of the majority of other federal regulatory statutes, where such a ticketing or “minor offences” procedure is not available, federal regulatory offences are generally enforced through the procedural sections of the Criminal Code, as well as the Interpretation Act. Hence, where a particular regulatory statute enacted by Parliament is “silent” as to its own sentencing principles, the Criminal Code provisions apply, such that its sentencing sections and jurisprudence may be of some assistance. At the same time, though, such provisions apply to criminal offences, as opposed to regulatory offences. As a result, these Criminal Code principles “may not be transferred directly.”
Provincial regulatory offences legislation, on the other hand, is based on a “simplified criminal procedure model.” The stated purpose of Ontario’s Provincial Offences Act is to provide a procedure that “reflects the distinction between provincial offences and criminal offences.” While Part IV of this legislation deals with trial and sentencing issues, no statement of the purposes or principles of sentencing is set out. As such, there is no sentencing guidance that is provided to sentencers. This “unsatisfactory state of affairs” is compounded where the particular provincial Act “is silent with respect to sentencing.” While some provincial statutes do contain a list of sentencing considerations, such as the Ontario Environmental Protection Act, which enumerates a list of aggravating factors, such as whether the offence caused an adverse effect or resulted from reckless or intentional behaviour, as well as the defendant’s conduct after the commission of the offence, including cooperation with the authorities, and British Columbia’s recently enacted Public Health Act, which addresses the relevant considerations in determining sentence and the purposes of sentencing, this is often not the case.
The law of sentencing for regulatory offences has therefore developed, on a default basis, in the courts. It has been left to sentencers to fill in the gaps, with the common law development of sentencing principles, for the vast array of public welfare statutes. Indeed, in some cases the statutory regimes which do apply may serve to frustrate the court’s ability to impose a sentence which addresses issues such as the harm caused by the offence, or putting in place measures to prevent future violations of the regulatory standard, an example being the probation provisions of the Provincial Offences Act of Ontario which can only be imposed where the proceedings are commenced by information and not the ticketing procedure, are not available for absolute liability offences, and in some cases requires the defendant’s consent to impose conditions, such as community service. In British Columbia, to provide another example, probation orders under the Offence Act may be made for no more than six months, thereby limiting the court’s ability to put in place long term court sanctioned remedial and rehabilitation plans.
It is perhaps due to the increasing complexity of regulatory provisions that courts have identified a list of multiple factors to consider in imposing sentence. In some cases, over 20 considerations are identified, in this “summary of sentencing principles approach” or “shopping list” of sentencing factors. An example of this approach is illustrated by R. v. Fraser Inc., a water pollution case caused by the defendant’s pulp mill. Some 23 factors for consideration were itemized by the court, ranging from the nature of the offence, actual or potential harm, deliberateness of the offence, the attitude of the accused, attempts to comply, ease or difficulty of preventing pollution, technology available, uniformity of sentence, and innovative type of sentencing. A somewhat different approach was taken by the court in a British Columbia case, where the relevant factors were grouped under these categories: circumstances of the offence and circumstances of the offender, as well as factors in aggravation, factors in mitigation and sentencing objectives. However, as Archibald et al caution, this “multiple approach” may result in the court losing “sight of the fundamental purposes of sentencing”, and perhaps even result in a sentence which is incompatible with the level of risk assessment set out in the legislation. Further, as Verhulst notes, it is not clear how the approximately two dozen principles that have been applied for regulatory offences by the Courts interrelate, which principles are to be given priority, and which factors are to be considered as aggravating or mitigating.
These “multiple approach” sentencing decisions originate from trial courts of first instance, and are therefore not binding on other courts as judicial precedent, although they may be considered persuasive or influential. Indeed, there is an institutional limitation that constrains the development of a cohesive jurisprudence for regulatory offences sentencing decisions at the appellate level. Whereas the Criminal Code provides for sentence appeals with leave of the court, the threshold for bringing an appeal against sentence to the Court of Appeal under the Provincial Offences Act of Ontario is considerably more onerous. According to the Act, “special grounds” are required in order for leave to appeal to be granted. This is defined as requiring a judge of the Court of Appeal to consider that “in the particular circumstances of the case it is essential in the public interest or for the due administration of justice that leave be granted.” No further appeal or review may be brought against a decision granting or refusing leave to appeal under the Act. There are similar restrictive provisions for appeals to other provincial Courts of Appeal in respect of regulatory offences.
Not surprisingly, this stringent requirement for leave to appeal effectively limits the number of regulatory offences sentencing decisions that reach the level of the Ontario Court of Appeal. It is also an established principle that appellate courts owe considerable deference to the decisions of the courts below in imposing sentence, absent an error in principle, failure to consider or over-emphasizing a relevant factor, or the imposition of a sentence that is “demonstrably unfit” or “clearly unreasonable.” This, too, acts as a constraint on the ability of the appellate courts to assess the fitness of sentence, given that it is not simply a matter of the appeal court substituting its opinion of what the sentence should be for the particular regulatory offences infraction. The dearth of regulatory offences sentencing decisions in the provincial appellate courts bears out the efficacy of these institutional limitations.
3. R. v. Cotton Felts Ltd. and its Legacy
In one of the few sentencing cases to reach the Ontario Court of Appeal, R. v. Cotton Felts Ltd., the Court, for the first time following the enactment of the Provincial Offences Act, discussed the principles of sentencing to be applied under the Occupational Health and Safety Act.. In upholding the $12,000. fine levied by the trial judge in relation to a workplace safety accident case, Blair J.A., on behalf of the unanimous Court, stated:
The Occupational Health and Safety Act is part of a large family of statutes creating what are known as public welfare offences. The Act has a proud place in this group of statutes because its progenitors, the Factory Acts, were among the first modern public welfare statutes designed to establish standards of health and safety in the work place. Examples of this type of statute are legion and cover all facets of life ranging from safety and consumer protection to ecological conservation. In our complex interdependent modern society such regulatory statutes are accepted as essential in the public interest. They ensure standards of conduct, performance and reliability by various economic groups and make life tolerable for all. To a very large extent the enforcement of such statutes is achieved by fines imposed on offending corporations. The amount of the fine will be determined by a complex of considerations, including the size of the company involved, the scope of the economic activity in issue, the extent of actual and potential harm to the public, and the maximum penalty prescribed by statute. Above all, the amount of the fine will be determined by the need to enforce regulatory standards by deterrence.
The Court went on to comment that, in computing the quantum of fine, the controlling principle is that “without being harsh, the fine