A. Sentencing Provisions Under the POA
Two areas of sentencing reform were proposed during our consultations: first, whether a statement of sentencing purposes and principles should be adopted in the POA, and second, whether the range of sentencing options available to the court should be expanded. We begin with a snapshot summary of the current sentencing provisions in Part IV of the POA and then an analysis of these two issues with reference to the regulatory pyramid discussed in Chapter III.
Under the POA, a maximum fine of $1,000 may be imposed where a person is convicted of an offence commenced under Part I. For Part III offences, the maximum fine is $5,000 unless a statute directs otherwise. Certain sentencing powers are limited to Part III proceedings, such as directing the preparation of a pre-sentence report and issuing a probation order. There is no general authority within the POA to order imprisonment as a sentence; such authority must exist in the offence-creating statute, although the POA creates several procedural offences where a term of imprisonment may be ordered (e.g., contempt of court can result in a fine of up to $1,000 or 30 days imprisonment). Where a statute authorizes imprisonment, the court may consider the time the person convicted already spent in custody and the imposition of a fine in lieu of imprisonment.
Upon conviction, a defendant is liable to pay court costs as prescribed by regulation, and a surcharge when a fine is imposed in respect of a Part I or Part III offence.
Fines are due and payable within 15 days after they are imposed. When a fine is in default, it may be enforced as a civil judgment by filing a certificate in either the Small Claims Court or Superior Court of Justice, which shall be deemed to be an order of that court for the purposes of enforcement. Other fine enforcement tools include a suspension of or refusal to renew a permit, license, registration or privilege where an Act authorizes the suspension or refusal to renew. The POA prescribes other enforcement tools, but as noted previously, they are not truly in force since by virtue of subsection 165(3) of the POA, they are not available to municipalities who have entered into transfer agreements with the Attorney General. They include the authority of a justice to issue an arrest warrant when a fine is in default and where other methods of fine collection have failed, and the authority of a justice to order a term of imprisonment for unpaid fines where incarceration would not be contrary to the public interest. We further note a Supreme Court of Canada decision that said genuine inability to pay a fine is not a proper basis for imprisonment. Where a person is unable to pay a fine, a justice may grant an extension of time, establish a schedule of payments, or in exceptional circumstances, reduce the fine.
A fine options program, authorized by the Act and established by regulation, permits the payment of fines by means of credit for work performed, although no such program is currently in effect.
B. Sentencing Purpose & Principles
1. Challenges Faced Without Prescribed Sentencing Purpose or Principles
The POA does not contain a statement of the purpose or principles of sentencing. The court has had to fill in the gap through case law. This approach has been criticized since the judiciary has had to make policy decisions on the priorities of sentencing, which is arguably a task better left to the legislature. Also, several cases with similar facts have had vastly different sentencing outcomes that are difficult to rationalize. Several have called for clear sentencing guidelines to promote consistency in sentencing and to assist the court in advancing the offence-creating statutes’ objectives. This is in contrast to the Criminal Code which expressly states the purpose and principles of sentencing applicable to criminal matters, and British Columbia’s Public Health Act which also contains sentencing principles for offences committed under that Act. Ontario’s Environmental Protection Act does set out aggravating factors to consider when sentencing environmental offenders, but it also lacks an overriding statement of sentencing purposes and principles. Thus Archibald, Jull and Roach conclude that sentencing provisions for Ontario’s regulatory offences “are a patchwork quilt that are in need of reform.”
Over the years, the court has established lengthy lists of sentencing principles for regulatory offences. It has considered and relied upon as many as 23 factors including the nature of the offence, the size, wealth, and nature of operations of the defendant, and the social utility of the defendant’s actions or business. This “shopping list” does offer guidance to the court, but it has not been wholly satisfying. For instance, it is not clear how the factors interrelate, if they should be considered aggravating or mitigating and what priority should be given among them. Furthermore, while the shopping list approach has been developed in trial courts of first instance, the Ontario Court of Appeal has rendered few decisions to guide lower courts during sentencing. One reason given for this lack of sentencing jurisprudence is the onerous threshold that must be met in order to appeal a sentence to the Court of Appeal.
The leading Court of Appeal decision on sentencing in regulatory matters is R. v. Cotton Felts Ltd. An employee was cleaning a moving machine when his arm was sucked into a machine’s rollers and crushed. His arm had to be amputated below the elbow. A regulation under the Occupational Health and Safety Act provides that a machine shall be cleaned only when motion that may endanger a worker has stopped. The defendant was convicted and given a $12,000 fine that was appealed. The Court of Appeal held that fines are typically used to enforce regulatory matters and that the primary determinant of the amount is deterrence:
To a very large extent the enforcement of such [regulatory] 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. [emphasis added]
The court further stated that while the fine should not be harsh, it should “not appear to be a mere licence fee for illegal activity.” The Court of Appeal has not issued a sentencing decision of general application like Cotton Felts in the more than 25 intervening years.
A number of writers take issue with Cotton Felts’ reliance on fines as the predominant sanction, and deterrence as the paramount sentencing principle for regulatory matters. They argue that other principles, such as remediation and rehabilitation, have an equal or even more important role in regulatory sentencing. They also call for additional tools beyond fines to implement this broader array of sentencing principles. Below we discuss principles of sentencing and other sentencing options that ought to be considered to enable courts to help promote regulatory goals.
2. Inconsistency in Sentencing Outcomes
Libman, in his research paper for the LCO on this Project, argues that Cotton Felts gives very little guidance and as a result there is a wide range of sentencing outcomes that are difficult to explain. He also questions the use of fines and the lack of other sanctions aimed at repairing the harm or rehabilitating the offender to promote future compliance with the regulatory statute. To illustrate his point, Libman examines several cases from Ontario and other Canadian jurisdictions, some of which we discuss below.
Examining workplace safety cases first, Libman references the R. v. Ellis-Don decision where the Ontario District Court reduced a fine imposed by a lower court under the Occupational Health and Safety Act from $20,000 to $10,000. A worker died after falling down an elevator shaft. On appeal, the majority of the Court of Appeal did not deal with the sentence because it ordered a new trial after addressing a constitutional issue, but the dissenting judge would have upheld the $10,000 fine. This would have resulted in a fine that was less than the fine in Cotton Felts, even though Ellis-Don involved a fatality and the defendant in that case was a major corporation. In another case, an employee received minor burns and others felt the impact after the boom of an excavator came into contact with live wires. The Court of Appeal approved fines against a small family-run business that totaled $35,000, far exceeding the fines awarded in Cotton Felts or Ellis-Don and where the injuries were much less significant than in these other two cases.
Even in cases with the same facts, different levels of court have difficulty determining the proper amount of a fine. In R. v. Inco Ltd., the defendant was a large mining company ultimately convicted of failing to maintain equipment in good condition and failing to leave a guard to protect workers from a moving part of equipment. This resulted in the death of an employee. The trial judge fined the company $250,000 per count on three counts. The Superior Court of Justice overturned one of the convictions and reduced the sentence on the remaining counts to $125,000 per count after revisiting the trial judge’s assessment of two factors applicable to sentencing. The Court of Appeal then restored the fine of $250,000 on the remaining two counts. Libman notes similar disparities in fine amounts from decisions in Alberta, Saskatchewan, New Brunswick and Newfoundland.
Sentences rendered in consumer protection cases can be equally difficult to explain. Libman cites R. v. Browning Arms Co. of Canada where the trial judge imposed a fine of $15,000 per count on four counts of ”resale price maintenance” for a total of $60,000. The court noted that a large total fine was required so that it did not amount to a “a mere licence to carry on.” The Court of the Appeal disagreed and imposed a fine of $2,500 per count for a total of $10,000. The result was that the total fine for all four counts was $5,000 less than what the trial judge would have ordered for each count individually. The case of R. v. Epson (Canada) Ltd. offers a further example. The trial judge imposed a fine of $200,000 for attempt to influence upwards the price by which distributors advertised the defendant’s products, but the Court of Appeal found the fine to be disproportionately high and reduced it to $100,000. And in R. v. Total Ford Sales Ltd., the Ontario District Court overturned fines ordered by a provincial court judge totaling $66,000 and replaced them with fines totaling $19,600 on the basis that the trial judge had not correctly applied certain sentencing factors. Again, the variance in the fines with the same facts supports the argument that greater guidance is needed in sentencing.
The third area examined by Libman is environmental offences. Although sentencing tools other than fines are more likely to be used for environmental offences, there is still considerable variation in the sentences handed down. In the case of R. v. Bata Industries Ltd., the Provincial Court imposed a total penalty of $120,000 for the unlawful discharge of toxic waste and a two year probation order. Half of the penalty was a fine and the remaining $60,000 was to fund the start-up costs of a local program designed to clean up domestic toxic waste, which was a term of the probation order. On top of Bata’s fines, two directors of the company were fined $12,000 each. The District Court on appeal reduced the total penalty to $90,000, resulting in $60,000 paid as a fine to the government’s Consolidated Revenue Fund and only $30,000 paid towards the local toxic clean up program. In addition, the fines for the individual directors were reduced to $6,000 each.
Clearly, the unique circumstances of a given case will result in different sentences being rendered, and therefore some disparity must always be expected. However, if sentencing is to be legitimate, “it should be based on a consistent and principled approach that aligns that part of the regulatory process with the underlying regulatory goals.” More defensible and principled sentences can be expected if the purposes of sentencing and prioritized sentencing principles are firmly established and not left entirely to judicial discretion. Moreover, it appropriately falls to the legislature to provide courts with the necessary tools to achieve the regulatory goals. As Libman no