A. Retrofitting the Regulatory Offences Sentencing Toolbox: a New Set of Sentencing Options for a New Statement of Sentencing Purposes and Principles
Almost from the time of implementation in 1980 of the Provincial Offences Act, concerns have been expressed that the sentencing options provided under the legislation were unduly limited. This was noted, for example, in the Law Commission of Canada’s study paper in 1985, entitled, Sentencing in environmental cases, where it was stated that due to “the wide range of offenders and contemplated by environmental laws,” there was a need for “a broader range of penalties and a wider variety of sentencing tools.” This view has been echoed, in relation to all manner of regulatory offences by Archibald et al, Verhulst, and most recently the Ontario Law Reform Commission. The issue is not unique to Ontario. An enhanced use of probation, restitution and community service orders, among other penalty provisions, it is contended, would better equip courts with the necessary tools to sanction offenders who fail to achieve the regulatory standard, and are likely to return to the regulated activity following sentencing.
On the other hand, it is clear that the stated intention of regulatory procedural statutes, such as the Provincial Offences Act of Ontario, is to enact a procedure that “reflects the distinction between provincial offences and criminal offences.” Hence, the more limited use of sentencing dispositions is in keeping with this fundamental difference. Indeed, the Provincial Offences Act, unlike the Criminal Code, does not contain penalty provisions which may be imposed for provincial offences, other than a general penalty, where no such punishment is set out in a provincial statute. Moreover, the few offences it does include are “primarily procedural in nature”, such as failing to appear in court, making a false statement, contempt of court and publishing the name of a young person. Instead, the Act “creates a number of procedures to govern sentencing, and to govern the collection of fines,” the latter being the most common form of punishment imposed by courts respecting the enforcement of public welfare statutes.
But with the enactment of a new statement of sentencing purposes and principles for regulatory offences, it is essential that courts are equipped with the necessary sentencing tools so as to give effect to these new measures. Otherwise, the goal of achieving compliance with the regulatory standard, and changing the behaviour of the regulated party, through sentencing, will be frustrated. Stated shortly, courts will not be able to play an effective role in the regulatory cycle unless they are given the sentencing tools with which this may be done. While a detailed examination of the scope of all such sentencing provisions is beyond the scope of this paper, it is appropriate to at least consider, in this concluding section, 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.
2. Provincial Offences Legislation Sentencing Provisions
All provinces have provincial offences legislation in one form or the other. The majority, as exemplified by Ontario’s Provincial Offences Act and the British Columbia Offence Act, contain discrete sentencing provisions of their own. However, some provinces simply provide for the summary conviction procedure set out in the Criminal Code to apply, including punishment. Typically, provincial offences sentencing provisions differ dramatically with those contained in the Criminal Code, particularly ones that have been added more recently, and which equip courts with broader and more innovative sentencing options, as in the case of conditional sentences for individuals, and probationary terms for organizations.
The sentencing options that are available under the Provincial Offences Act of Ontario are essentially these: fines, probation and imprisonment, or a combination thereof, such as a fine and period of imprisonment, or a suspended sentence and term of probation. Discharges are not available, as there is no record of convictions under the Act. In particular, a number of sentencing provisions deal with fine enforcement and ancillary issues, such as surcharges, the victims’ justice fund account, fine due dates and extension of time for payment of fines,regulations for work credits for fines, civil enforcement of fines and default of payment of fines. Probation may be imposed for up to 2 years; there is a penalty for breaching the terms of a probation order. Where imprisonment is ordered, that is, the statute creating the offence provides for such a penalty, such as the offence of careless driving under the Highway Traffic Act (Ont.), where there is a minimum fine of $200 and not more than $1,000, or imprisonment for up to 6 months, or both, under the Provincial Offences Act the court may suspend the passing of sentence and place the offender on probation, or, where less than 90 days’ imprisonment is imposed, order that the sentence be served on an intermittent basis, such as over weekends.
In crafting such sentences, however, a number of questions may be posed. Did the court take into account how the breach of the regulatory standard impacted the victim? How would the victim, if he/she so wished, convey such information to the court? If such information were made available to the court, how should it play a role in the court’s disposition, for example, might it support a term of probation, or influence the quantum of fine, or even be reflected in a custodial disposition as where a denunciatory sentence is warranted, but the victim attests to post-offence conduct by the offender mitigating the harm done? Community service, restitution or compensation, are examples of other matters that the court might wish to consider in crafting its sentence, especially where the regulated party is likely to continue participating in the regulatory activity following sentencing. It is to these sentencing measures, and related provisions, that consideration will now be given.
3. Victim Impact Statements
Although the breach of the regulatory standard may cause harm, or potential for harm, to a person or the community, there is no formalized mechanism under the Provincial Offences Act to provide victims of regulatory offences with the opportunity to convey such information to courts, thereby depriving the judge or justice of the peace at the time of sentencing of hearing how the commission of the regulatory offence has impacted the party most directly impacted by the regulated offender’s conduct. This contrasts to the Criminal Code where there are detailed provisions which allow the victim of a crime to file before the court a victim impact statement, in prescribed written form, “describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.” Such a victim also has the right to read his/her statement to the court; the court, in turn, has the obligation to inquire of the prosecutor, prior to sentencing, if the victim has had the opportunity to prepare a victim impact statement, and may adjourn the proceedings to allow this to be done.
The victim impact statement provisions under the Criminal Code reflect the objective that courts should impose sentences that “provide reparations for harm done to victims or to the community.” Accordingly, victims play a “significant role” in the sentencing process. In fact, a number of purposes are served by victim impact statements in the sentencing process: courts receive “relevant evidence” concerning the effect or impact of the crime from the person able to provide direct evidence on point; resort to the “best evidence on the subject of victim loss”, namely, the victim himself/herself, assures an accurate measure of any necessary compensation and brings home to the offender the consequences of his/her behaviour; victim participation in the trial process “serves to improve the victim’s perception of the legitimacy” of the process; and information respecting the “individuality of the victim” promotes an understanding of the consequences of the crime in the context of the personal circumstances of the victim. In short, without this type of information “a Court would be unable on its own to adequately understand the harm done and the loss suffered by a victim.” This, in turn, helps the court “to understand the circumstances and consequences of the crime more fully, and to apply the purposes and principles of sentencing in a more textured context.”
A number of decisions support the practice of receiving victim impact statements with respect to regulatory offences into evidence on sentencing. However, this is up to the individual judge or justice of the peace. Hence, while victim impact statements have been adduced in evidence in provincial offences proceedings in the Ontario courts, as well as other jurisdictions, there is no automatic right to do so. As a result, the authority of courts to hear such evidence remains unclear. Equally uncertain is the manner that such evidence should take when it is tendered, given that there are no prescribed victim impact statement forms, as is the case under the Criminal Code, and whether the victim has the right to personally address the court, or someone else, if the victim is unavailable to do so. It may also be unclear whether a person would be considered a “victim,” and thus entitled to participate in the sentencing process, where he/she does not suffer harm immediately or directly, but is nevertheless impacted by the regulated party’s conduct, as might occur in a pollution case. These are just a few of the uncertainties that illuminate the victim impact statement process, at present, in relation to provincial offences and other public welfare statutes.
One of the anomalies that results from this omission in provincial offences legislation is that for victims of both criminal and regulatory offences, which are the subject of the same or related transactions, such as stealing a car contrary to the Criminal Code, and causing an accident while driving it away in excess of the speed limit contrary to the Highway Traffic Act, the victim would be permitted to describe to the sentencing court, as of right, the impact of the offence on him/her only for the former offence, but not the latter. The same result is produced where the defendant is charged with a Criminal Code offence, such as dangerous driving, but is allowed to plead guilty to a provincial offence, such as careless driving: the victim is entitled to address the court in the former instance only, but not the latter.
The enactment of victim impact statement provisions under the Provincial Offences Act would allow victims of regulatory offences to play a greater role in the sentencing process, while ensuring that courts receive information as to the impact of the offence on those most directly affected. This furthers the court’s ability to address the issue of remedial measures as well as rehabilitation of the offender, and the other sentencing principles, deterrence and denunciation. Indeed, a statement of sentencing purposes and principles for regulatory offences, which accords priority to remediation undertaken by the regulated party, would doubtlessly be enhanced by the nature and quality of information furnished by victim impact statements, in furtherance of this sentencing objective.
The probation provisions under the Provincial Offences Act particularly illustrate the limitations of the Act’s sentencing powers, especially when compared to the use of probation for offenders who commit criminal offences. Probation under the Ontario provincial offences legislation may be imposed for a maximum of 2 years whereas the Criminal Code maximum period of probation is 3 years. The latter neither distinguishes between the use of probation for indictable (more serious) nor summary conviction (less serious) offences. Probation may be imposed in either case so long as the offence is not one where there is a minimum punishment prescribed by law, or the sentence of the court does not exceed two years, thereby amounting to a penitentiary sentence. Conversely, probation under the Provincial Offences Act is available only where the offence is one where the proceedings have been commenced by information, that is, Part III proceedings as opposed to Part I ticket proceedings; neither must the individual have been convicted of an absolute liability offence.
Under both the federal and provincial legislation, there are statutory or compulsory terms that must appear in a probation order, as well as those that are optional and may be imposed at the court’s discretion. A comparison of these provisions readily demonstrates the limitations of probationary terms for offenders who breach provincial regulatory statutes, subject to the sentencing powers that may be set out in the particular provincial statute. This is particularly the case respecting optional conditions that may be utilized in a provincial offences probation order. Even the mandatory terms of probation differ, although there are three such conditions in both criminal offence and provincial offences probation orders.
Under the Criminal Code the statutory or compulsory terms of probation are the following: (1) keep the peace and be of good behaviour; (2) appear before the court when required to do so by the court; and (3) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or probation officer of any change of employment or occupation. These differ somewhat from the mandatory three terms which are deemed to be contained in Ontario provincial offences probation orders: (1) the defendant not commit the same “or any related or similar offence”, or any offence under a statute of Canada or Ontario or any other province of Canada that is punishable by imprisonment; (2) the defendant appear before the court as and when required; and (3) the defendant notify the court of any change in the defendant’s address. In essence, the keeping the peace and being of good behaviour clause of the provincial offences probation order is worded more narrowly than its criminal counterpart, and the matters to notify the court of, as opposed to a probation officer, are confined to a change of address, as opposed to any change of name, employment or occupation.
It is with respect to the optional or discretionary terms of probation that may be imposed on sentencing, however, where it is most readily apparent as to the restrictive manner in which provincial offences probation orders operate. The more restrictive terms of probation under the Provincial Offences Act is said to reflect “the different character of provincial offences”. Under the Criminal Code, there is a currently a list of 10 such optional conditions that may be imposed; additional optional terms of probation are set out for organizations. In the case of offenders placed on probation in relation to criminal offences, the optional terms include matters such as requiring the person to report to a probation officer, or remaining within the jurisdiction of the court. Other terms include requiring the offender to abstain from owning, possessing or carrying a weapon, or providing for the support or care of dependents. It is also open to the court to direct that the offender perform up to 240 hours of community service over a period of not more than 18 months. Another optional condition is that the court may require the person to “comply with such other reasonable conditions as the court considers desirable” in order to protect society and facilitating “the offender’s successful reintegration into the community.”
As noted, there are also further optional conditions which are specifically set out in the Criminal Code for organizations. These terms read as follows:
732.1(3.1) The court may prescribe, as additional conditions of a probation order made in respect of an organization, that the offender do one or more of the following:
(a) make restitution to a person for any loss or damage that they suffered as a result of the offence;
(b) establish policies, standards and procedures to reduce the likelihood of the organization committing a subsequent offence;
(c) communicate those policies, standards and procedures to its representatives;
(d) report to the court on the implementation of those policies, standards and procedures;
(e) identify the senior officer who is responsible for compliance with those policies, standards and procedures;
(f) provide, in the manner specified by the court, the following information to the public, namely,
(i) the offence of which the organization was conviction,
(ii) the sentence imposed by the court, and
(iii) any measures that the organization is taking – including, any policies, standards and procedures established under paragraph (b) – to reduce the likelihood of it committing a subsequent offence; and
(g) comply with any other reasonable conditions that the court considers desirable to prevent the organization from committing subsequent offences or to remedy the harm caused by the offence.
By way of comparison, there are only four optional conditions that may be included in probation orders under the Provincial Offences Act. The first is that the defendant satisfy any compensation or restitution that is required or authorized by an Act. The effect of this is that compensation or restitution may be ordered as a term of probation only where it is specifically permitted by the enactment creating the offence; the Provincial Offences Act does not itself authorize this. Conversely, probation provisions in provincial offences legislation in other jurisdictions across Canada expressly permit compensation or restitution to be made a condition of such orders.
The second optional term is that the defendant perform community service. This condition requires the consent of the defendant, and the offence must be one that is punishable by imprisonment. These are significant limitations on the use of community service, and appear to reflect the view that such orders, at least in relation to provincial offences, are “sufficiently draconian in their intrusion on the liberty of the subject to require their restriction to circumstances in which they are an alternative to imprisonment.” Unlike the Criminal Code, there is no prescribed period over which such community service is to be completed, nor any ceiling on the number of hours of community service that may be ordered by the court. Moreover, provincial offences legislation in other Canadian jurisdictions authorizes the imposition of community service as a term of probation.
The third optional term is that where the conviction is for an offence punishable by imprisonment, the court may impose such other conditions relating to the circumstances of the offence and of the defendant that contributed to the commission of the offence, as the court considers “appropriate to prevent similar unlawful conduct or to contribute to the rehabilitation of the defendant.” This term therefore requires that the conditions “relate to the circumstances that actually contributed to the commission of the offence.”
Finally, there is an optional condition respecting a reporting requirement. Where the court considers it necessary for the purposes of implementing the conditions of the probation order, it may direct that the defendant report to a “responsible person” designated by the court, as well as be under the supervision of the person to whom the defendant is required to report, where the circumstances warrant it. This optional term differs from the Criminal Code reporting condition in three significant ways: it can only be imposed where the requirement to report is “considered necessary” for the purpose of implementing the other conditions of the probation order; the defendant must report to a “responsible person” as opposed to a probation officer; and the term that the defendant be under the supervision of the person to whom he/she reports is only to be imposed where “the circumstances warrant it”.
Probation orders enable the court to supervise the conduct of the offender for a significant period of time following the imposition of the court’s sentence. Under the Provincial Offences Act this can be for a maximum of 2 years. In addition, the offender can be punished for failing to follow the terms of probation. This includes fining the defendant up to $1,000, or imposing imprisonment for a maximum of 30 days, or both; the court can also make changes or additions to the probation order, and extend its application for an additional 1 year period. Alternatively, it is open to the justice who made the original probation order to revoke it, and instead impose the sentence which was suspended upon the making of the probation order.
For offenders convicted of regulatory offences, the operation of s.72(3) respecting optional or additional terms of probation severely limits the court’s ability to use probation as a means of furthering the regulatory objective through remedial and rehabilitative measures. Indeed, a probationary term that is appropriate for rehabilitation may have “a secondary punitive effect.” Community service, for example, is permitted only with the defendant’s consent and where the underlying offence is punishable by imprisonment; compensation and restitution are available only where authorized by the statute in question. However, as Verhulst observes, in order for courts “to craft the most appropriate sentence”, it is essential that there be “a wide variety of sentencing options”. The Ontario provincial offences legislation, on the other hand, appears to inhibit such sentences, at least through the restrictive scope of probation orders.
Moreover, the Act frustrates other innovative approaches, such as the use of an “imbedded auditor” to monitor compliance by the defendant with the court’s order, as proposed by Archibald et al. Another measure the authors put forth is a requirement that corporations post a bond, as a form of security to the Crown, to ensure that there are funds available to satisfy any potential fines or remediation “in any sector where there are significant regulatory constraints.” Such terms might well be included in a provincial offences probation order, were there the authority under s.72(3)(c) to do so, on the basis that such conditions would “prevent similar unlawful conduct” or “contribute to the rehabilitation of the defendant. ”On the other hand, the Criminal Code probation terms for organizations provide a model of what additional terms of probation might be considered desirable and appropriate, especially in relation to corporations convicted of breaching regulatory statutes. At a minimum, these Code provisions suggest that it is appropriate to set out probationary terms that operate differently for corporations than for individuals. Indeed, the Criminal Code probationary provisions for organizations seem particularly apposite for regulated parties who fail to adhere to the regulatory standard, as they are particularly directed towards remedial and rehabilitative goals.
5. Fine Option Programs
Least it be thought that the issue of sentencing inflexibility merely stems from the restrictive manner in which probation is provided for under the Provincial Offences Act, it should be noted that there is a dearth of other sentencing options and ancillary provisions in the legislation, beyond fines and jail. There is currently no fine option program or manner in which work credits can be performed in lieu of financial penalties. It was contemplated in the original legislation that such a program be established in order to allow the offender to satisfy a fine by performing specified work. There is no requirement under s.67 of the Act that the fine must be in default in order for the defendant to be eligible for the work credit program. A similar fine option program is set out under s.736 of the Criminal Code. For impecunious offenders who commit regulatory offences and are fined, then, there is no system in place of “working off” fines, although other relief from payment provisions are available.
While regulations were enacted to permit such a fine option program to operate for provincial offences, there continues to be no such program in existence in Ontario. Indeed, the schedule of fine option program districts has been revoked. As a result, Ontario is one of the few jurisdictions in Canada not to have a fine option program in operation. It has been observed that such programs are “clearly aimed at offenders of limited means for whom a fine is the appropriate disposition.”
The Supreme Court of Canada has made reference to the absence of the fine option program in Ontario, commenting that the dismantling of the program’s administrative apparatus appeared to be in response to “budget cuts”. The defendant in the case in question had been convicted of being in possession of contraband tobacco, contrary to the Excise Act, and was sentenced to the minimum fine, of which he was unable to afford. The trial judge commented that had the fine option program been available in Ontario, he would have enrolled the defendant to work off the debt over a period of time through community service. This case attests to the usefulness of fine option programs for regulatory offences, and their potential application under provincial offences legislation.
6. Alternative Measures
Other options, such as “alternative measures” which are set out in the Criminal Code for adult offenders, or “extra-judicial sanctions” for young persons, are not available under the Provincial Offences Act. Some public welfare statutes do, in fact, authorize such alternative measures, as in the case of the Canadian Environmental Protection Act, 1999, which sets out “environmental protection alternative measures.” In essence, “alternative measures” are a form of diversion: the court is authorized to dismiss a charge where the defendant has entered into, or completed, an agreed upon program of alternative measures, such as community service, attendance at a victim awareness program, or donation to a charitable organization. Such programs are in keeping with restorative justice initiatives, by furthering the offender’s rehabilitation through taking responsibility for the wrongful act, and acknowledging its impact on the victim. As is the case for fine option programs, it is up to the province to design and implement alternative measures or diversion programs.
Alternative measures under the Criminal Code are available only where “it is not inconsistent with the protection of society.” Other requirements include that such measures must be appropriate having regard to the needs of the person alleged to have committed the offence, and the interests of society and of the victim. Victim input is an important component of diversion resolution agreements which found alternative measures. The defendant must accept responsibility for the conduct that forms the basis of the offence with which he/she has been charged; alternative measures are not to be used if the person denies participation or involvement in the commission of the offence, or wishes to have the charge dealt with by the court. Failure to complete the alternative measures program will lead to the continuation of the proceedings against the defendant.
In terms of how alternative measures might be proffered under provincial offences legislation, there are examples of public welfare statutes that contain such provisions, and might therefore serve as a model for Ontario’s Provincial Offences Act. Incorporation of alternative measures into this procedural Act would thereby extend the ambit of such programs to all manner of regulatory offences, in much the same manner as does the Criminal Code. Under the Canadian Environmental Protection Act, 1999, “environmental protection alternative measures” are cast in similar terms to s.717 of the Criminal Code: where such measures have been used to deal with a person alleged to have committed a designated offence under the Act, the court may dismiss the charge, upon being satisfied that the person has complied with the agreement.  The federal Species at Risk Act also puts in place an alternative measures scheme. Under this statute, an alternative measures agreement may remain in force for up to 3 years; it may be supervised by governmental or non-governmental organizations. These regulatory statutes effectively put in place diversion programs based on the Criminal Code, with appropriate modifications for the particular legislation. It would be open to the Provincial Offences Act to do the same: enact an alternative measures provision of general application, while allowing for modifications to suit individual provincial regulatory Acts.
7. Alternative Penalties
Alternative penalties, unlike alternative measures which are performed in advance of proceedings before the court, flow from a finding of guilt after the proceedings, and permit the court to impose a sanction which is beyond the typical penalty of a fine, probation or imprisonment. The British Columbia Public Health Act employs such an approach for regulatory offences. Some of the alternative penalties it provides resemble, in fact, terms that might be included in a probation orders; however, others are quite innovative and appear particularly well suited for regulated actors who have failed to achieve the regulatory standard.
A number of the alternative penalties in the British Columbia legislation might be considered to be quite traditional in nature, such as requiring the offender to pay compensation for the cost of a “remedial or preventive action taken by or on behalf of the person as a result of the commission of the offence.” Community service may be ordered for a period of up to 3 years..The court may also require that the offender not engage in any activity that may result in the continuation or repetition of the offence, or the commission of a similar offence under the Act, or to comply with any conditions that the court considers appropriate for preventing the person from continuing or repeating the offence, or committing a similar offence under the Act.
In terms of some of the other more creative alternative penalties, the court may order that the offender submit information to the minister or a health officer, respecting the activities of the person, for a period of up to 3 years. Where the offender is a corporation, the court may designate a senior official within the corporation as the person responsible for monitoring compliance with the legislation, or the terms or conditions of any licence or permit held by the corporation under the Act. The offender can also be ordered to develop guidelines or standards, or implement a process, for the purposes of preventing the person from continuing or repeating the offence, or committing a similar offence. These guidelines or standards may also be made available over a 3 year period, from the time of their development, to another person or class of persons. The court also has the authority to order the offender to publish the facts relating to the commission of the offence, as well as any other information it considers appropriate. In addition, the offender may be required to post a bond in an amount of money that the court considers appropriate for the purpose of ensuring compliance with a prohibition, direction or requirement imposed as an alternative penalty.
The goal of alternative penalties is to “give effect to the purposes of sentencing” as set under the Public Health Act. The enactment of a statement of sentencing purposes and principles under the Provincial Offences Act of Ontario should likewise lead to a consideration of such innovative measures, which might encompass alternative penalties provisions, so as to give the court broader flexibility in crafting a disposition that will encourage the offender to resume participation in the regulated activity, in a fully compliant manner.
8. Creative Sentence Orders
A recent trend in regulatory offences sentencing cases involves the courts imposing innovative sentencing dispositions which incorporate restorative justice principles, so as to give effect to the “polluter pays” principle. However, such “creative sentences” are dependent upon the statutory authority provided in the offence-creating statute. An example of sentencing powers of this nature is illustrated by s.79.2 of the Fisheries Act, which gives the court the authority to make the following orders:
79.2 Where a person is convicted of an offence under this Act, in addition to any punishment imposed, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order containing any one or more of the following prohibitions, directions or requirements:
(a) prohibiting the person from doing any act or engaging in any activity that may, in the opinion of the court, result in the continuation or repetition of the offence;
(b) directing the person to take any action the court considers appropriate to remedy or avoid any harm to any fish, fishery or fish habitat that resulted or may result from the commission of the offence;
(c) directing the person to publish, in any manner the court considers appropriate, the facts relating to the commission of the offence;
(d) directing the person to pay the Minister an amount of money as compensation, in whole or in part, for the cost of any remedial or preventive action taken by or caused to be taken on behalf of the Minister as a result of the commission of the offence;
(e) directing the person to perform community service in accordance with any reasonable conditions that may be specified in the order;
(f) directing the person to pay Her Majesty an amount of money the court considers appropriate for the purpose of promoting the proper management and control of fisheries or fish habitat or the conservation and protection of fish or fish habitat;
(g) directing the person to post a bond or pay into court an amount of money the court considers appropriate for the purpose of ensuring compliance with any prohibition, direction or requirement mentioned in this section;
(h) directing the person to submit to the Minister, or application by the Minister within three years after the date of the conviction , any information respecting the activities of the person that the courts consider appropriate in the circumstances; and
(i) requiring the person to comply with any other conditions for securing the person’s good conduct and for preventing the person from repeating the offence or committing other offences under this Act.
These provisions, which are not unlike “alternative penalties” as set out under the British Columbia Public Health Act, permit the court to effectively require the defendant to “take action” and clean up the mess for which it is responsible. In addition, the defendant may be ordered to pay monies to “laudable groups or agencies” rather than merely being fined. Decisions including creative sentencing orders have imposed requirements that the defendant provide the Ministry with a rationalized long-term site monitoring program and an engineering report which was to be submitted to the informant. In another case, the defendant was required to establish scholarships for students enrolled in environmental science and resources technology, and construct an effluent treatment plant for which it had to post an irrevocable letter of guarantee respecting the plant’s construction.
There is no authority to make such orders under the Provincial Offences Act of Ontario, the necessary authorization having to be found in the applicable legislation. Whether styled as “alternative penalties” or “creative sentences”, the inclusion of such provisions in a procedural statute of general application would better permit courts to craft sentences which emphasize remedial and rehabilitative measures. This is in keeping with the underlying values of the regulatory regime, and thereby fosters a compliance culture. In essence, such sentences permit the court to be an active participant in the regulatory cycle, within the proper confines of sentencing, by furthering the regulatory objective and moving the offender towards compliance and a better relationship with regulators. There remains, if necessary, other sentencing powers to emphasize deterrence and denunciation. Creative sentencing provisions do not detract from such dispositions, but bolster the ability of courts, instead, to be more flexible in fashioning the most appropriate sentence, having regard to all the circumstances.
9. Restitution and Compensation
Restitution and compensation are examples of “compensatory community sanctions”. These measures are directed at “redressing the victim of an offence for loss or injury suffered.” They are not, strictly speaking, the same: compensation is “monetary payment to redress property loss” whereas restitution is “financial reimbursement for either property damage of for physical injury.” The Law Reform Commission of Canada in its 1974 paper on “Restitution and Compensation” commented that restitution “challenges the offender to see the conflict in values between himself, the victim, and society;” in particular, it “invites the offender to see his conduct in terms of the damage it has done to the victim’s rights and expectations.”
The Criminal Code provides for restitution and compensation to be awarded, either as a term of probation as an optional “reasonable condition”, or as a free-standing order. The latter may be entered as a judgment in civil court and enforced as such if it is “not paid without delay”. In this manner, the amount of restitution becomes enforceable against the offender as if the order was a judgment of the civil court. Conversely, a probation term of compensation or restitution (the term “reparations” is sometimes used as well) is enforceable only during the currency of the probation order, and thereafter only if breach proceedings are initiated, and successfully prosecuted. In either event, the Criminal Code encourages the use of such compensatory terms: the statement of purpose in s.718 directs courts on sentencing to impose sanctions to “provide reparations for harm done to victims or to the community”, as well as to “promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.”
On the other hand, the Provincial Offences Act severely restricts the ability of courts to award restitution or compensation to victims of regulatory offences. Unlike the Criminal Code, restitution may not be imposed as a free-standing order, independent of probation, in relation to provincial offences. Conversely, provincial offences legislation in other jurisdictions across Canada authorizes the awarding of compensation on sentencing, as a remedy for persons aggrieved due to loss or damage to property caused by the defendant. Indeed, as the England and Wales Court of Criminal Appeal very recently stated in R. v. Thames Water Utilities Ltd.,, there is “a clear policy need” to encourage the making of voluntary reparation by offenders who commit regulatory offences, whether by consenting to compensation orders, or making or pledging voluntary payments.
As for probation, the provincial statute in question must authorize the use of compensation or restitution in order for such a condition to be attached; there is no authority under the Provincial Offences Act itself to do so.  Further, there is no enforcement mechanism for restitution under the legislation, apart from breach of probation proceedings, such as seeking to have unpaid restitution orders enforced as a judgment in the civil courts, as permitted by the Criminal Code, as well as provincial offences legislation in other jurisdictions. The effect of these limitations is to significantly restrict the utility of such restitution and compensation provisions for regulatory offences, notwithstanding that this sanction is a method of encouraging offenders to take responsibility for their actions, while providing an effective means of redress to victims.
Under the Criminal Code there is a power for a judge on sentencing to order forfeiture of property that is “offence-related property,” and where the offence was committed in relation to that property. A similar provision is contained in the Controlled Drugs and Substances Act. The Criminal Code also sets out forfeiture powers on sentencing in relation to “proceeds of crime”. A detailed set of procedures is provided for all these forfeiture provisions. While forfeiture is recognized as being “technically part of the sentence”, a forfeiture order is not punishment specifically for the offence. Instead, these provisions are designed to “deprive offenders of the profits of their crimes and take away any motivation to pursue their criminal activities.”
It is not uncommon for public welfare statutes to employ forfeiture powers for courts on sentencing. Forfeiture is considered to be an “additional punishment” for the more serious regulatory offences, especially where there is a commercial or profit motivation. Forfeiture is a particularly effective tool where there have been repeated violations of the law, since a method to prevent repetition of the offence is to “forfeit the means used in the commission of the offence.” Hence, the Fisheries Act provides that a court may order that anything seized, or the proceeds realized from its disposition, be forfeited to the Crown. Other regulatory statutes that employ similar forfeiture provisions typically include hunting and wildlife legislation.
For example, in a case of unlawfully hunting at night under the Manitoba Wildlife Act, the defendants were each fined $600, plus costs, and the truck and rifles used in the commission of the offence, which were worth approximately $45,000, were the subject of a forfeiture order. In a Newfoundland fisheries case, the court fined the defendant $25,000, and ordered forfeiture of the crab traps which had been seized by the authorities, as well as the amount of money ($132,000) realized from the sale of the crab which had been illegally caught. It has been observed, however, that forfeiture is “a rough tool of justice”, given that it does not permit the court to take into account the mitigating factors that Parliament has set out under s.718.2 of the Criminal Code as being relevant on sentencing.
Conversely, the Provincial Offences Act refers to forfeiture only in the context of Part I (ticket) proceedings. Pursuant to s.12(2), which deals with consequences of conviction, it is stated that any thing seized in connection with the offence after the service of the offence notice under Part I is not liable to forfeiture. It appears that the rationale for this provision is that when the offence notice is delivered, the defendant “will know what articles have been taken from him and thus be aware of the potential consequences of conviction.” It also minimizes the “possibility of an unreasonable seizure of goods” once the officer has decided that the offence does not warrant the issuance of a summons, and thus any appearance in court by the defendant The absence, then, of forfeiture powers under the sentencing provisions of the Provincial Offences Act, precludes the court from making any order in relation to the proceeds of regulatory offences, or items used in furtherance of the commission of the offence, absent a provision to this effect in the underlying public welfare legislation in question.
11. Conditional Sentences
Finally, consideration may be given to conditional sentences as a sentencing option for regulatory offences. Indeed, it was at the same time that a statement of sentencing purposes and principles was enacted for criminal offences that the conditional sentence regime was also created, pursuant to the 1996 amendments to the Criminal Code. Such sentences are an alternative to the traditional method of imprisonment, since incarceration is not required to be served within an institution; they also constitute a means by which the court can implement its sentencing powers so as to “craft the appropriate disposition for an offender.” Conditional sentences are additionally said to achieve restorative objectives of sentencing, while providing denunciation and deterrence.
It is neither necessary nor desirable to set out in detail the Criminal Code conditional sentence provisions, other than to note that a procedure is in place governing the imposition of such sentences. Among other things, conditional sentences must be consistent with the fundamental purpose and principles of sentencing. Certain offences are excluded, depending upon their nature or maximum terms of imprisonment, including offences punishable by mandatory minimum terms of imprisonment. There are also compulsory conditions and optional conditions which may be attached to the conditional sentence order; a mechanism exists for breach of conditional sentence proceedings.
Conditional sentences, however, are not available for provincial regulatory sentences. They are “creatures of statute.” Hence, the absence of provisions authorizing the use of conditional sentences under the Provincial Offences Act renders them inapplicable. They may not be imposed as an enforcement mechanism for unpaid fines. Indeed, it is questionable whether innovative sentences fashioned by courts which seek to invoke aspects of conditional sentence orders, such as a house arrest term, are proper, notwithstanding that the offender may well have consented to such a provision so as to avoid serving a period of imprisonment in an institution.
The absence of legislative authority to impose conditional sentences for offenders who commit provincial offences, as opposed to criminal offences, produces a number of anomalous results. Conditional sentences carry broader optional (and compulsory) conditions which might be attached to the court’s order, and thus be better suited for the regulatory context, as opposed to the more narrow terms of provincial offences probation terms which restrict, for example, the use of community service and restitution or compensation. Conversely, community service of up to 240 hours over an 18 month period may be made an optional condition of a conditional sentence;a term of restitution may be attached, as well, to the conditional sentence order. The procedure for breach proceedings of conditional sentences is also more substantive, thereby providing further incentive for the offender to comply with the disposition of the court.
Further, a conditional sentence may be imposed for an offender who commits, for example, the Criminal Code fraud offence, but not related offences under provincial statutes, such as a violation of the Securities Act, which is punishable by imprisonment of up to 5 years less one day, and a maximum fine of $5 million dollars, or both. To give another example, a person charged with the Criminal Code offence of street racing, whom might be permitted to plead guilty to the Highway Traffic Act offence of street racing, is subject to a period of imprisonment in both instances, but is required to serve such a sentence in an institution only in relation to the provincial offence. Finally, a conditional sentence might be imposed with respect to a federal regulatory offence, due to the application of the Criminal Code sentencing provisions, but not the equivalent provincial regulatory offence, as in the case of a workplace accident that occurs in relation to a federal undertaking where both the federal and provincial health and safety provisions “co-exist” on the same work site.
Whether conditional sentences are a viable sentencing tool whose use should be expanded, or restricted, is a matter for the legislators. Certainly there are competing policy considerations engaged with respect to the availability of conditional sentences for regulatory offences. On one hand, the inability to grant conditional sentences for regulatory offences produces the “perverse” result, according to Archibald et al, that “more people are actually going to jail for regulatory offences” than those who commit criminal offences. On the other hand, providing different procedural options, including sentences, might be viewed as a legitimate basis upon which to distinguish provincial offences from criminal offences, as the statement of purpose in Ontario’s Provincial Offences Act makes clear. Hence, the inapplicability of criminal offences sentencing dispositions, such as conditional sentences, in relation to provincial offences, is in keeping with this distinction between regulatory offences and true crimes. It is clear, however, that conditional sentences do constitute a sentencing option which provides courts with flexibility in crafting sentences, while allowing offenders to serve sentences in the community, thereby furthering their rehabilitation. The unavailability of conditional sentences under the Provincial Offences Act of Ontario is thus another example of the more limited form of dispositions which illuminate the regulatory offences sentencing process.
Changes to the Provincial Offences Act are required in order to expand and modernize its sentencing powers. These include providing for the admissibility of victim impact statements, alternative measures or diversion, alternative penalties or additional orders so as to impose creative sentences, restitution as a free-standing order, forfeiture of the proceeds of a regulatory offence, and conditional sentences. In addition, the probation provisions of the Act might be enhanced to provide for lengthier periods of probation; optional conditions could be increased so as to mandate community service and restitution, as of right, in probation orders. So too might the discrete probation sections of the Criminal Code for organizations be added. These additions to the sentencing landscape for provincial offences would be very significant, but are in keeping with the goal of furthering the regulatory objective on sentencing. In the result, courts would be equipped with much more flexible, and modern, sentencing options.
On the other hand, expanding the regulatory toolbox in this manner would continue to blur the distinction between criminal offences and regulatory offences. The intention of provincial legislative regimes for regulatory offences is premised on the distinction between such offences, and to provide a procedure which reflects this difference. It must be acknowledged that the addition to the Provincial Offences Act of the panoply of sentencing powers reviewed here, especially dispositions such as conditional sentences, would inevitably make provincial offences courts resemble, more and more, criminal courts. Whether the value, then, of such enhanced sentencing options makes the cost of the regulatory toolbox too high, or its use unwieldy, is a question that merits further reflection.
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