A. Retrofitting the Regulatory Offences Sentencing Toolbox: a New Set of Sentencing Options for a New Statement of Sentencing Purposes and Principles
1. Introduction

Almost from the time of implementation in 1980 of the Provincial Offences Act,[963] concerns have been expressed that the sentencing options provided under the legislation were unduly limited.[964] 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.”[965] This view has been echoed, in relation to all manner of regulatory offences by Archibald et al,[966] Verhulst,[967] and most recently the Ontario Law Reform Commission.[968] The issue is not unique to Ontario.[969] 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.”[970] Hence, the more limited use of sentencing dispositions is in keeping with this fundamental difference. Indeed, the Provincial Offences Act, unlike the Criminal Code,[971] 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.[972] Moreover, the few offences it does include are “primarily procedural in nature”,[973] such as failing to appear in court,[974] making a false statement,[975] contempt of court[976] and publishing the name of a young person.[977] Instead, the Act “creates a number of procedures to govern sentencing, and to govern the collection of fines,”[978] the latter being the most common form of punishment imposed by courts respecting the enforcement of public welfare statutes.[979]

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 [980]and the British Columbia Offence Act,[981] contain discrete sentencing provisions of their own. However, some provinces simply provide for the summary conviction procedure set out in the Criminal Code[982] to apply, including punishment.[983] 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,[984] and probationary terms for organizations.[985]

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.[986] Discharges are not available, as there is no record of convictions under the Act.[987] In particular, a number of sentencing provisions deal with fine enforcement and ancillary issues, such as surcharges,[988] the victims’ justice fund account,[989] fine due dates[990] and extension of time for payment of fines,[991]regulations for work credits for fines,[992] civil enforcement of fines[993] and default of payment of fines.[994] Probation may be imposed for up to 2 years[995]; there is a penalty for breaching the terms of a probation order.[996] 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.),[997]  where there is a minimum fine of $200 and not more than $1,000, or imprisonment for up to 6 months, or both,[998] under the Provincial Offences Act the court may suspend the passing of sentence and place the offender on probation,[999] or, where less than 90 days’ imprisonment is imposed, order that the sentence be served on an intermittent basis, such as over weekends.[1000]

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[1001] 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[1002] where there are detailed provisions which allow the victim of a crime[1003] to file before the court a victim impact statement, in prescribed written form,[1004] “describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.”[1005] Such a victim also has the right to read his/her statement to the court;[1006] 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,[1007] and may adjourn the proceedings to allow this to be done.[1008]

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.”[1009] Accordingly, victims play a “significant role” in the sentencing process.[1010] 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.[1011] 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.”[1012] 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.”[1013]

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,[1014] as well as other jurisdictions,[1015] 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,[1016] and causing an accident while driving it away in excess of the speed limit contrary to the Highway Traffic Act,[1017] 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,[1018] but is allowed to plead guilty to a provincial offence, such as careless driving[1019]: 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.

4. Probation

The probation provisions under the Provincial Offences Act[1020] 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[1021] whereas the Criminal Code maximum period of probation is 3 years.[1022] 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,[1023] or the sentence of the court does not exceed two years,[1024] thereby amounting to a penitentiary sente