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Regulatory Offences and Principles of Sentencing: Is The REGULATORY OFFENCES AND PRINCIPLES OF SENTENCING: IS THE "PATCHWORK QUILT" IN NEED OF RESHAPING AND REFORM? RICK LIBMAN A DISSERTATION SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY GRADUATE PROGRAM IN LAW YORK UNIVERSITY TORONTO, ONTARIO MAY 2011 Library and Archives Bibliotheque et 1*1 Canada Archives Canada Published Heritage Direction du Branch Patrimoine de I'edition 395 Wellington Street 395, rue Wellington Ottawa ON K1A 0N4 OttawaONK1A0N4 Canada Canada Your fie Votre reference ISBN: 978-0-494-80589-3 Our file Notre reference ISBN: 978-0-494-80589-3 NOTICE: AVIS: The author has granted a non­ L'auteur a accorde une licence non exclusive exclusive license allowing Library and permettant a la Bibliotheque et Archives Archives Canada to reproduce, Canada de reproduire, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par I'lnternet, preter, telecommunication or on the Internet, distribuer et vendre des theses partout dans le loan, distribute and sell theses monde, a des fins commerciales ou autres, sur worldwide, for commercial or non­ support microforme, papier, electronique et/ou commercial purposes, in microform, autres formats. paper, electronic and/or any other formats. The author retains copyright L'auteur conserve la propriete du droit d'auteur ownership and moral rights in this et des droits moraux qui protege cette these. Ni thesis. Neither the thesis nor la these ni des extraits substantiels de celle-ci substantial extracts from it may be ne doivent etre imprimes ou autrement printed or otherwise reproduced reproduits sans son autorisation. without the author's permission. In compliance with the Canadian Conformement a la loi canadienne sur la Privacy Act some supporting forms protection de la vie privee, quelques may have been removed from this formulaires secondaires ont ete enleves de thesis. cette these. While these forms may be included Bien que ces formulaires aient inclus dans in the document page count, their la pagination, il n'y aura aucun contenu removal does not represent any loss manquant. of content from the thesis. 1+1 Canada Abstract Sentencing dispositions are routinely imposed by courts in every jurisdiction across Canada, yet there is very little by way of statutory authority that guides courts in determining what punishment to impose. It has only been recently, for criminal offences, that the Parliament of Canada enacted a statement of sentencing purposes and principles so as to specify the goals and aims of punishment, and thus provide courts with a guiding rationale or sentencing philosophy. However, for regulatory offences, which protect society by regulating conduct that ranges from the air one breathes to the food that is consumed, no such statement of sentencing purposes or principles exists. This has resulted in uneven and inconsistent sentencing patterns and practices for regulatory offences, as well as uncertainty as to what are, in fact, the relevant sentencing considerations with respect to such offences, and the manner in which they should be interpreted and applied. The question addressed in this thesis is whether there is a legitimate basis for the enactment by legislators of a statement of sentencing purposes and principles for regulatory offences. The author asserts that there is. All of the major approaches that are put forward for guiding the courts' sentencing discretion, such as the use of guideline judgments by appellate courts or mandatory sentencing guidelines, are analyzed. However, none is found to be as effective as the statutory codification of a statement of sentencing purposes and principles by the legislators who are responsible for enacting the same regulatory iv legislation that courts are called upon to interpret, and impose punishment, where a regulated party fails to meet the regulatory standard. As a result, consideration should be given to enacting a statement of sentencing purposes and principles for regulatory offences that not only identifies and organizes what such sentencing considerations are, but states how courts should prioritize and implement them. v Acknowledgments I would like to express my sincere gratitude for the support, guidance and encouragement given to me by the members of supervisory committee: Professors Alan Young, Poonam Puri, James Stribopoulos, Lesley Jacobs, Allan Manson and Kenneth Jull. I would also like to thank all the members of the Graduate Program in Law for their assistance, as well as my fellow graduate law students. Generous financial assistance was provided by both Osgoode Hall Law School and the Ontario Graduate Scholarship Program. Most of all, however, I wish to acknowledge the love and support of my family. VI TABLE OF CONTENTS Abstract iv Acknowledgments vi INTRODUCTION 1 PART I: FRAMING THE PROBLEM: REGULATORY OFFENCES AND SENTENCING PROVISIONS Chapter 1." .a patchwork quilt... in need of reform": Enforcement Mechanisms, Penalty Provisions and Punishment for Breaches of Regulatory Statutes 1 Introduction 12 2. Overview of Regulatory Offences, Enforcement Mechanisms and Penalty Provisions 13 3. The Nature of Regulatory Offences 16 4. Overlap of Regulatory Offences and Criminal Offences .20 5. Regulatory Offences and Statutory Interpretation 26 6. The Recent Trend of Escalating Penalties for Regulatory Offences .. .28 7. Statement of Sentencing Purposes and Principles in Other Statutes 33 8. Matrix of Regulatory Offences Sentencing Decisions ... 36 9. Conclusion 41 PART II: SETTING THE STAGE: PURPOSES AND PRINCIPLES OF SENTENCING FOR CRIMINAL OFFENCES Chapter 2. "My object all sublime... to let the punishment fit the crime": Sentencing for Criminal Offences 1.1ntroduction 43 2. History of Sentencing Reform prior to the Criminal Code of Canada Statement of Sentencing Purposes and Principles 44 Vll 3. The Enactment of a Statement of Sentencing Purposes and Principles for Criminal Offences . .52 4. Sentencing Guidelines for Criminal Offences in the United States Federal Courts 58 5. Guideline Judgments for Criminal Offences in the United Kingdom .63 6. Sentencing Purposes and Principles for Criminal Offences in Australia and New Zealand 70 7. Sentencing Purposes and Principles for Criminal Offences in Civil Law Jurisdictions 80 8. Conclusion... 85 PART III: DEVELOPING THE FOUNDATION: PURPOSES AND PRINCIPLES OF SENTENCING FOR REGULATORY OFFENCES Chapter 3. A "special approach" or "barrier of sentencing"? Sentencing for Regulatory Offences 1 .Introduction 87 2. Determining Sentencing Purposes and Principles for Regulatory Offences in Canada 88 3. R. v. Cotton Felts Ltd. and its Legacy 93 4. Differing Views as to Purposes and Principles of Sentencing for Regulatory Offences 100 5. Sentencing Purposes and Principles for Regulatory Offences in the United States 115 6. Sentencing Purposes and Principles for Regulatory Offences in the United Kingdom 123 7. Sentencing Purposes and Principles for Regulatory Offences in Australia and NewZealand 144 8. Conclusion... 149 vni Chapter 4. Regulatory Offences Sentencing Jurisprudence within Canada: A Survey of Workplace Safety, Consumer Protection and Environmental Regulation Decisions 1. Introduction 150 2. Workplace Safety Sentencing Decisions ... 152 3. Consumer Protection Sentencing Decisions ... .161 4. Environmental Regulation Sentencing Decisions ... 170 5. Conclusion ... 191 PART IV: SETTLING ON SOLUTIONS: THE REGULATORY CYCLE AND PURPOSES AND PRINCIPLES OF SENTENCING FOR REGULATORY OFFENCES Chapter 5. The Regulatory Cycle and its Role in Shaping Purposes and Principles of Sentencing for Regulatory Offences 1. Introduction ... 194 2. Risk Assessment and Risk Management ... 198 3. Regulatory Enforcement Pyramids... 202 4. The Regulatory Cycle and "Penalties Principles".... 208 5. The Regulatory Cycle and Changing Regulatory Strategies.... 215 6. Conclusion.... 224 Chapter 6. Sentencing Purposes and Principles for Regulatory Offences: A New . Approach for Regulatory Justice 1. Introduction... 226 2. The British Columbia Public Health Act: A Model of Sentencing Purposes and Principles for Regulatory Offences enacted by Legislators ...229 3. Identifying and Prioritizing Sentencing Purposes and Principles for Regulatory Offences... 233 (i) remedying the harm or potential for harm... 235 IX (ii) rehabilitation... 237 (iii) general deterrence 243 (iv) denunciation ...245 4. Sentencing Purposes and Principles in a Statute of General Application ..251 5. Sentencing Purposes and Principles for All or Some Regulatory Offences..254 6. Conclusion 260 PARTV: FINISHING TOUCHES Chapter 7. Retrofitting the Regulatory Offences Sentencing Toolbox: a New Set of Sentencing Options for a New Statement of Sentencing Purposes and Principles 1. Introduction... .263 2. Provincial Offences Legislation Sentencing Provisions... 265 3. Probation 267 4. Fine Option Programs 275 5. Alternative Measures.... 276 6. Alternative Penalties... 279 7. Creative Sentence Orders... 281 8. Restitution and Compensation... 283 9. Forfeiture... 285 10. Conditional Sentences 287 11. Victim Impact Statements... 291 12. Conclusion... 295 CONCLUSION 297 x ENDNOTES 302 BIBLIOGRAPHY 353 XI INTRODUCTION 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
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