In the Law Reform Commission of Canada’s study paper in 1985, entitled, Sentencing in environmental cases, it was stated that the “time was ripe … for thoughtful discussion of the sentencing process.”[1166] Twenty-five years later, it is long overdue. The Provincial Offences Act’s[1167] sentencing provisions are in need of revision and reform, so as to not to be rendered obsolete by the many changes and developments that have occurred in the three decades following the enactment of the legislation. These include the Charter of Rights [1168] and its impact on punishment provisions and procedure generally; the trend towards escalating penalty provisions for regulatory offences; the enactment of a statement of sentencing purposes and principles for criminal offences in the Criminal Code,[1169] as well as the broader sentencing powers under the Criminal Code which overlap with regulatory offences, such as in relation to organizations and victims; and the heightened public awareness of the impact that regulatory laws play in our daily lives, to say nothing of the volume of regulatory offences.

There is a pressing need for the enactment of a statement of sentencing purposes and principles for regulatory offences. It is important for there to be such a guiding philosophy or sentencing rationale, set out by the legislators who are responsible for enacting regulatory offences, so that courts imposing punishment may craft dispositions which further the underlying regulatory objectives with respect to offenders who fail to meet the regulatory standard. Otherwise, inconsistencies in sentencing patterns and practices will inevitably continue to illuminate regulatory justice, as courts are left to make such determinations on a case by case basis.

This is not to say that the enactment of a statement of sentencing purposes and principles under the Provincial Offences Act will be a panacea for all that ails the sentencing system. It may well be, as some will doubtlessly contend, that regulatory offences prove no more amenable to a statement of sentencing purposes and principles than has been the case with the Criminal Code of Canada statement of sentencing purposes and principles. However, unlike the Criminal Code, a statement of such sentencing purposes and principles under the Provincial Offences Act can and should be specifically tailored towards regulatory offences, and organized and arranged in a hierarchical manner, thereby leading to a more consistent and predictable application, and just result.  .

This statement of sentencing purposes and principles should apply to all categories of provincial offences. There must not be different classes of regulatory offences for which sentencing considerations are perceived as being less important. The persons who are impacted by regulatory offences are certainly not likely to view them this way. However routine the disposition of the court may appear in arriving at the penalty of choice for breaching the regulatory standard, that is, a fine, the process by which such punishment is calculated and put into effect must remain principled and rational throughout. Whether the party appears before the court in response to a ticket, or more formal court process involving a sworn information, should make no difference to regulatory offences sentencing practices and procedures.

Lastly, in order to implement this new sentencing statement of purposes and principles, broader and more modern sentencing tools will be required. Otherwise courts will lack the means to hear evidence from victims of regulatory offences on sentencing, and craft orders through probation and other provisions, such as community service, compensation and restitution, and forfeiture, which are most responsive to the circumstances of the regulated offender and the regulatory offence. These additions to the sentencing landscape for provincial offences are in keeping with the goal of furthering the regulatory objective on sentencing. They are also necessary so as not to frustrate the court’s ability to play an effective role in helping the party achieve compliance with the regulatory standard. However, the scope of expansion of the regulatory offences toolbox must be carefully considered, so as not to become unnecessarily cumbersome, and merely duplicative of criminal offences sentencing provisions which are not well suited for application in the regulatory context, having regard to the fundamental differences between true crimes and regulatory offences. 

In short, a person who comes in contact with the administration of justice in the province of Ontario is most likely to do so for a provincial offence, more so than for any other matter.  The most likely outcome of the regulated party’s case will involve a sentencing disposition, in one form or another.  This is the reality of regulatory justice in Ontario. It is time for the Provincial Offences Act’s sentencing provisions to be modernized to reflect this fact.


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