Introduction2017-03-03T18:35:01+00:00

Sentencing. It should come naturally to judges. After all, it is what most courts do much of the time. The resolution rate of charges in Ontario, whether criminal or quasi-criminal in nature, routinely approaches 90%: very few matters, in fact, go to trial.[1] Of those that do, findings of guilt often result; appeals from such cases rarely succeed.[2] Judges and justices of the peace should therefore be well versed in imposing sentences, and thoroughly familiar with the legal principles upon which such sentences are based.

 

But this is not always the case. At least not with the type of charges that  arise most frequently, provincial offences under Ontario’s Provincial Offences Act[3], which are a form of a regulatory or public welfare offence, and for which the overwhelming majority of persons will ever have contact with the administration of justice in the province of Ontario.[4] “Provincial offences” are created by laws enacted by the province, or regulations or by-laws established under such authority, and involve all manner of regulated activities.[5] There are also comparable federal laws for regulatory offences, or “contraventions,” falling under the exclusive jurisdiction of the Parliament of Canada.[6] Such statutes, in common, set out provisions that regulate conduct for our protection, ranging from rules of the road governing motor vehicles to protecting workers from dangerous pieces of equipment; from regulating the preparation of food products to the sale of services and goods, and to safeguarding the environment. There is virtually no area that is neither the subject of regulation, nor a corresponding penalty for breach of the regulatory standard.

 

The question which therefore arises is why should there be such uncertainty as to sentencing purposes and principles in this all encompassing area of the law? The answer appears to be relatively simple: there is no statement of what constitutes such sentencing purposes and principles for regulatory offences. Consequently, judges and justices of the peace who impose sentences for regulatory offences do not have before them a guiding rationale or legislative statement explaining what aims are to be addressed by the court’s sentence, or what goals are to be furthered through the imposition of punishment. Neither is this any more apparent to the lawyers and parties who appear before the courts, including accused persons and corporate defendants. As a result, there is the oft espoused criticism that the absence of such a statement of sentencing purposes and principles for regulatory offences makes imposing punishment a lottery, where inconsistency and unpredictability abound. The statutory provisions which govern sentencing for regulatory offences have been described, aptly, as “a patchwork quilt … in need of reform.”[7] 

 

Identifying the problem is easy. What is more difficult is crafting a solution. The issue addressed in this research paper, in response to the questions posed by the Law Commission of Ontario in its Modernization of the Provincial Offences Act Consultation Paper[8] with respect to sentencing practices under the Provincial Offences Act, is whether there should be a statement of sentencing purposes and principles for regulatory offences in the Provincial Offences Act, and if so, in what form it should take. A number of other issues arise. These include whether it should make any difference that there are different streams of procedure under the Provincial Offences Act, that is, tickets for minor offences under Part I where jail is not allowed and fines are capped at $1,000, as opposed to the information procedure under Part III for more serious offences where higher fines and imprisonment are available, as well as other sentencing dispositions, such as probation. Should sentencing purposes and principles apply to all such matters, or only the more serious Part III proceedings? And if there is to be such a statement of sentencing purposes and principles, what should it say? Should the goals or aims to be achieved be prioritized in some hierarchical manner? The means by which such a sentencing statement or purposes and principles should be carried out, that is, what sentencing tools are needed to best implement this sentencing statement, is also relevant. It is these important questions with which this research paper is concerned.

 

I commence my discussion under Part I where I seek to identify and frame the problem. There is first an overview of regulatory offences and sentencing provisions, as well as enforcement mechanisms. Regulatory offences correspond to an incredibly diverse and complex series of activities. Indeed, one of the challenges that emerges for courts when imposing a penalty for the commission of a regulatory offence is the breadth of the type of activity and conduct that may comprise the infraction. Whereas the Criminal Code of Canada[9] includes a statement of sentencing purposes and principles to guide courts in determining punishment,[10] there is no such guidance provided to courts sentencing those who commit regulatory offences. I illustrate the consequences of this lack of statutory guidance, in summary form, by a matrix of regulatory offences in the area of workplace safety, consumer protection and environmental protection: regulatory agency sentencing patterns are of relevance in gauging the need for consistency and uniformity in the area of sentencing for regulatory offences generally. I conclude Part I by noting that it has been left to the courts, to fill in the gaps, when faced with the bewildering array of regulatory offences, enforcement mechanisms, and penalty provisions. What is lacking, however, is a consistent and rational approach. This requires, in turn, the identification and organization of sentencing purposes and principles for regulatory offences.

 

Part II of this research paper is entitled “Setting the Stage”. In it I set out purposes and principles of sentencing for criminal offences. I do so in order to not only identify what these purposes and principles are, but also to analyze how these sentencing purposes and principles are organized and arranged. The approach with respect to Criminal Code sentencing purposes and principles affords a potential model for regulatory offences sentencing purposes and principles. Moreover, there is a rich body of academic commentary and literature on the issue of sentencing purposes and principles for criminal offences in Canada, including numerous Parliamentary reports and Law Commission of Canada studies in the area, as well as the debate surrounding the amendments to the Criminal Code in 1996 wherein a statement of sentencing purposes and principles was enacted for the first time.

 

In Part III, the foundation is developed for identifying those sentencing purposes and principles that are relevant for 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. Given the absence of a statement of sentencing purposes and principles for regulatory offences, 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. The purposes and principles of sentencing for regulatory offences that have been recognized by courts in Ontario and elsewhere in Canada are set out under this Part. Reference is made to the scholarly literature as well.

 

The review in Part III of sentencing principles for regulatory offences illustrates a concern that guidance is required for courts imposing sentences for such offences. However, there are differences of opinion as to how this guidance should be provided, and what form it might take. In order to see if the general observations made about sentencing practices and patterns are borne out, a matrix of regulatory offences sentencing decisions in the areas of workplace safety, consumer protection and environmental regulation within the Canadian jurisprudence is examined. This expands the matrix of regulatory offences sentencing decisions, put forward in summary form, in Part I of this research paper. In the survey of sentencing cases which follows, decisions at the superior court level across Canada are analyzed, since this includes both judgments in trial courts as well as appeals against sentences imposed by lower courts. It is, of course, not possible to examine every type of regulatory offence or sentencing principle to test the argument that has been advanced as to the marked inconsistencies that apply in such cases, and thus the need for a statement of sentencing principles and purposes so as to promote uniformity and consistency of approach in sentencing dispositions. However, a sampling of cases in the areas of workplace safety, consumer protection and environmental regulation seems apt for a number of reasons, especially since these type of cases are frequently before the courts, and merit attention given their relative importance. To be sure, these regulatory regimes are necessarily broad and distinct, but an examination of sentencing practices and patterns in these areas may provide insights as to different modes of sentencing theory.

 

In Part IV solutions to the problem of sentencing inconsistencies and lack of guidance for regulatory offences are set out. It is my position that a new approach is required, in order to properly identify sentencing purposes and principles that are to be applied to regulatory offences specifically, and that are best suited to the regulatory context in which such offences occur. For where there has been a breach of a regulatory standard, the court must look not only backwards at the conduct which gave rise to the non-compliance, but forward as well, since the defendant often continues to participate in the regulated endeavour following the imposition of punishment.

 

I explore this issue first with a discussion of the concept of the “regulatory cycle” and its role in shaping sentencing purposes and principles for regulatory offences. By this it is meant that sentencing is merely one part, albeit a most important part, in the regulatory offences context. The beginning of the regulatory cycle involves the identification of regulatory objectives; provisions are subsequently devised, and implemented, to give effect to these objectives, including the creation of regulatory offences. Enforcement strategies may thus include prosecution, in which case the offender, upon being convicted and sentenced, is often permitted to return to participate in the regulated activity, thereby continuing to be involved in the regulatory cycle, even after the imposition of punishment by the court. The focus of this section is to explore and critically analyze the concept of the regulatory cycle, and examine how it has the potential to play an important role in shaping regulatory offences sentencing principles. A proper understanding of the regulatory cycle is essential for courts when imposing punishment for regulatory offences, so as to better promote regulatory sentencing objectives and outcomes. The identification of sentencing purposes and principles for regulatory offences, in turn, bolsters the court’s ability to select the sanction that best encourages the regulated actor’s successful reintegration within the regulatory cycle.

 

The next section under Part IV builds upon this theoretical discussion, and sets out those considerations which I argue should be recognized as constituting sentencing purposes and principles for regulatory offences. It is essential that a “sentencing rationale” for regulatory offences be clearly articulated by the legislators, so as to eliminate the problems caused by uncertain and unstructured sentencing practices which flow from the lack of a guiding philosophy for regulatory offences sentencing purposes and principles. The court’s punishment or sentence, in turn, should be designed to give effect to the regulatory goals of the legislators which are set out in the legislation. In particular, purposes and principles of sentencing which are appropriate for regulatory offences should be identified and enumerated in a sequential order for courts to consider, and implement, in their dispositions. It is only when courts approach sentencing on this basis, applying a statement of sentencing purposes and principles enacted by the legislators in these terms, that regulatory objectives will truly be furthered. This approach sets out and prioritizes the applicable sentencing purposes and principles for regulatory offences and provides the courts with a clear rationale, aimed throughout, at furthering regulatory objectives.

 

I conclude my research paper with Part V which is entitled “Finishing Touches.” It contains a discussion of the sentencing tools that are required to best implement the statement of sentencing purposes and principles put forth for regulatory offences. The governing legislation in Ontario, the Provincial Offences Act, which was enacted thirty years ago, provides courts with few sentencing options apart from fines, probation and imprisonment; in limited circumstances restitution and community service may be imposed, the latter requiring the defendant’s consent. Consequently, there have been concerns expressed that there is a need for a much broader range of penalties and a wider array of sentencing tools.

 

It is therefore appropriate to consider whether an enhanced use of probation, restitution and community service orders, among other penalty provisions and ancillary orders, such as victim impact statements, would better equip courts with the necessary tools to deal with offenders who fail to achieve the regulatory standard, and are likely to return to the regulated activity following sentencing. It is my belief that such sentencing measures are not only desirable under the Provincial Offences Act, but also necessary. Otherwise, the goal of achieving compliance with the regulatory standard, and changing the behaviour of the regulated party through sentencing, will be frustrated. In short, courts will not be able to play an effective role in the regulatory cycle unless they are given the sentencing tools to accomplish this. At the same time, however, care must be taken not to simply duplicate criminal law sentencing provisions which may not be well suited in the regulatory offences context. In this concluding Part, I thus consider how the regulatory offences sentencing toolbox might be updated and equipped, in order to best implement a new statement of sentencing purposes and principles for regulatory offences.

 

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